Citation: Bortus v. Aviva Insurance Company of Canada, 2021 ONLAT 20-003442/AABS

Released: March 3, 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:

Mazin Bortus

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Ben Fotia, Counsel

For the Respondent:

Evan A. Argentino, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant was injured in an accident on January 20, 2019, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. 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 of the MIG?

b. Is the applicant entitled to a medical benefit for $2,465 for physiotherapy recommended by Health Pro Wellness submitted June 22, 2019 and denied July 5, 2019?

c. Is the applicant entitled to a medical benefit for $3,130.76 for physiotherapy recommended by Health Pro Wellness submitted October 8, 2019 and denied October 22, 2019?

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

e. Is the applicant entitled to an award under s. 10 of O. Reg. 664?

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to payment for the treatment plans in dispute, interest or an award under s. 10 of O. Reg. 664.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that as a result of the accident he suffers severe, persistent, and constant pain resulting from the accident that constitutes chronic pain, specifically in his right elbow. To this end, he submits that a “reasonable person can conclude the applicant’s medial ligament in his elbow stretched to the point it was partially torn, leading to a diagnosis of “Medial Epicondylitis” and the injury that the applicant has been suffering from for over six months.” He points to clinical notes and records of his family physician, Dr. Atto, Aviva’s s. 44 report and the OCF-18’s in dispute to demonstrate entitlement beyond the MIG. Further, the applicant submits that Aviva’s notices did not comply with s. 38.

6In response, Aviva submits that the applicant has failed to demonstrate that his accident-related impairments warrant treatment beyond the MIG. It asserts that the applicant’s evidence that he suffers from chronic pain does not meet any of the six criteria under the AMA Guides, that he demonstrated no functional impairment, that the diagnostic imaging revealed normal results and that its s. 44 report from Dr. Harmantos revealed injuries treatable within the MIG. Aviva submits that its denials met the requirements under s. 38.

7I agree with Aviva and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. First, the actual physical injuries identified by the emergency room (soft-tissue injuries), by Dr. Atto (sprain/musculoskeletal pain and tennis elbow) and by Dr. Harmantos (soft-tissue injuries) all fall squarely within the definition of a minor injury under the Schedule. The x-ray and ultrasound imaging reports in evidence revealed mild degenerative changes and insertional tendonitis in the elbow, which are clearly-age related conditions not attributable to the accident. His assertion that a “reasonable person could conclude” that the medial ligament in his elbow “stretched to the point it was partially torn” is not supported by the medical evidence. In any case, even if there was objective evidence of a partial tear, a partial tear does not lead to removal from the MIG. Further, there is no authority to support the inference that a wear and tear condition like “Medial Epicondylitis”, or golfer’s elbow, does not fall within the definition of the MIG. Accordingly, I find there is no indication in the file that his accident-related impairments should be considered outside of the definition of a minor injury under s. 3(1).

8Second, with regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant reported no pre-existing conditions and did not offer submissions for removal on this ground.

9Next, as both parties submit, the Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. Here, the basis for the applicant’s chronic pain claim is the duration of his elbow pain, his self-reporting of pain that reaches 9-10/10 on the pain scale, the injuries listed in the OCF-18s and his post-accident complaints to Dr. Atto. While not strictly required, the applicant did not direct the Tribunal to a clear diagnosis of chronic pain from Dr. Atto causing functional impairment or of chronic pain syndrome, specifically, relying only on self-reporting and the duration of his pain. Further, OCF-18s are not compelling medical evidence.

10While the duration of pain is one factor, this alone does not satisfy his burden. In contrast, Aviva provided submissions on the six criteria under the AMA Guides to demonstrate that the applicant does not suffer from chronic pain. While not binding, the Tribunal has adopted the six criteria as a tool for assessing chronic pain claims. In order to satisfy his burden, the applicant should demonstrate that he meets at least three of the six criteria. However, the applicant did not offer reply submissions to rebut any of Aviva’s arguments.

11On the evidence, I find Aviva’s submissions on the six criteria to be compelling and follow them in their entirety. First, the applicant was not consuming excessive prescription medication, as there is only one prescription for accident related injuries on March 21, 2019 for Arthrotec, an anti-inflammatory. Second, I agree with Aviva that there is no evidence of excessive dependence on health care providers or the applicant’s family, as the applicant followed up with Dr. Atto two months after the accident and there is no evidence of any further follow ups since October 2019.

12I also agree that there is little to no evidence of disruption of function or activity. The applicant did not take any time off from his full-time employment as a machine operator where he worked 57 hours per week. He also continued to be the primary caregiver for his mother following the accident and continued to engage in his self-care activities, although it is noted that shaving is difficult. In any case, I agree that there is no evidence of secondary physical deconditioning or fear avoidance of physical activity. There is no evidence of withdrawal from social milieu, and no failure to restore pre-injury function. I agree that all of the medical signs point to the elbow injury being age or wear and tear related. Finally, I agree that there is no evidence in support of significant psychological complaints or a psychological diagnosis after the accident. Indeed, the applicant has not cited psychological impairment as grounds for removal from the MIG.

13Accordingly, I find the applicant has not demonstrated that he meets any of the six criteria under the AMA Guides that would justify removal from the MIG based on chronic pain. While the applicant may have lingering elbow pain, he has not demonstrated that it is chronic pain that warrants removal from the MIG. To this end, I see no objective reason to interfere with Dr. Harmantos’ opinion from his s. 44 report that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. For these reasons, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

14Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. While it is unclear if the MIG limits have been exhausted, for completion, the applicant failed to offer specific submissions to demonstrate how the two treatment plans in dispute are reasonable and necessary and it is not sufficient to rely solely on the OCF-18s themselves. Absent specific submissions, I follow Dr. Harmantos’ s. 44 opinion that the treatment plans are not reasonable and necessary or payable. As no benefits are overdue, it follows that no interest is payable under s. 51.

Section 38(8)

15The applicant submits that Aviva’s notices did not comply with s. 38(8), an argument that dovetails with his s. 10 submissions, below. He argues that on April 30, 2019, an OCF-18 was submitted by the clinic in the amount of $1,100 for physiotherapy, which Aviva partially approved for $983.60, however, “no written response was provided to the insured.” The applicant asserts that because he never received a written response, Aviva cannot take the position that he falls within the MIG with regards to the remaining $116.40.

16In response, Aviva submits that the applicant withdrew the medical benefit in the amount of $116.40 at the Case Conference, so the issue is no longer before the tribunal and must not be considered. On review of the Case Conference Order, Aviva is correct, and the applicant offered no reply.

17In any event, I find the OCF-18 was submitted on June 22, 2019 and denials followed on July 5, 2019 and 12, 2019 on the grounds that the applicant’s impairments were minor and that there was no compelling medical evidence that his injuries did not fall within the MIG. Aviva relied on Dr. Harmantos’ s. 44 report. The OCF-18 was submitted on October 8, 2019 and a denial followed on October 22, 2019 relying again on the conclusions of Dr. Harmantos. I agree with Aviva that it provided adequate medical reasons in its denial of the two treatment plans and responded within 10 days in accordance with s. 38(8).

Section 10 Award

18The applicant also sought a 50% award under s. 10 of O. Reg. 664, submitting that Aviva unreasonably withheld the payment of benefits, impeding his recovery, did not issues proper notices and has not considered all of the medical evidence before it when adjusting his claim. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

19As the applicant was unsuccessful and is not entitled to payment of benefits, I find an award is not appropriate. On the evidence, I find no reason to interfere with Aviva’s determination that the applicant’s accident-related impairments are treatable within the MIG. I find its notices complied with s. 38(8) and that it properly adjusted the applicant’s claim where the applicant has not produced any updated records since October 2019.

ORDER

20The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to payment for the treatment and assessment plans, no interest is payable, and an award is not appropriate.

Footnotes

1. 1O. Reg. 34/10, as amended.