Arsovski v. Aviva General Insurance, 2021 CanLII 19497

Citation: Arsovski v. Aviva General Insurance, 2021 ONLAT 19-011809/AABS

Released: February 2, 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:

Nikolce Arsovski

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Nikolce Arsovski, Applicant Jeton Memeti, Paralegal

For the Respondent: Aviva General Insurance, Representative Darcy Dakota Forster, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, Nikolce Arsovski was involved in a motor vehicle accident on January 10, 2019 and applied for medical benefits from the respondent, Aviva pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹.

2Aviva argues that all of Nikolce Arsovski’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“the MIG”).² Nikolce Arsovski’s position is the opposite.

3If Aviva is correct, Nikolce Arsovski is then subject to the $3,500.00 limit on benefits prescribed by s.18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the cost of the treatment sought exceeds the MIG limit, which has been exhausted.

4I must decide whether Nikolce Arsovski’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit and, if they are not, I must determine his entitlement to the medical benefits in dispute.

ISSUES TO BE DECIDED

5The issues in dispute are as follows:

a. Did Nikolce Arsovski sustain predominantly minor injuries as defined under the Schedule?

6If Nikolce Arsovski’s injuries are not predominantly minor, then I must determine the following issues:

a. Is the medical benefit in the amount of $4,679.68 for chiropractic services, denied on July 25, 2019, reasonable and necessary?

b. Is the medical benefit in the amount of $3,976.71 for chiropractic services, denied on October 21, 2019, reasonable and necessary?

c. Is the cost of examination expense in the amount of $1,982.26 for a psychological assessment, denied on July 25, 2019, reasonable and necessary?

d. Is Nikolce Arsovski entitled to interest on any overdue payment of benefits?

e. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Nikolce Arsovski?

RESULT

7Based on a review of all the evidence put before me, I find that Nikolce Arsovski’s injuries/impairments meet the definition of “minor injury” under the Schedule. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

ANALYSIS

Did Nikolce Arsovski sustain physical injuries that remove her from the MIG?

8Although Nikolce Arsovski has provided medical evidence confirming he sustained accident-related injuries, the evidence does not justify removal from the MIG limit. In addition, the evidence submitted by Aviva confirms that Nikolce Arsovski’s physical injuries fall within the MIG.

9My finding that Nikolce Arsovski’s physical injuries fall within the MIG is supported by the following evidence:

(i) The Disability Certificate (“OCF-3”) completed by Alexander Yu, a chiropractor, dated January 21, 2019, confirms Nikolce Arsovski suffered whiplash, sprain/strain of the thoracic and lumbar spine and sprain/strain of shoulder joint. These are injuries that are considered predominantly minor. Although the OCF-3 also lists headache, insomnia and generalized anxiety disorder, Mr. Yu, as a chiropractor, is not qualified to diagnose psychological impairments. The injuries listed in the OCF-3 are consistent with the complaints seen in Nikolce Arsovski's treatment records, which also confirm predominantly minor injuries. I also note that the anticipated duration of disability is indicated to be 9-12 weeks;

(ii) On January 15, 2019, family physician, Dr. Gupta noted Nikolce Arsovski’s thoracic and lumbar spine were “fine, albeit tender”. Subsequent visits to Dr. Gupta, with the next being August 22, 2019, do not contain any consistent accident-related subjective pain complaints. An x-ray report, nearly one- year post-accident showed the sacroiliac joints were normal;

(iii) The records from the treatment provider, Alpha Physio, show continued improvement with treatments. Notes from several February 2019 visits report a “decrease in pain levels, feeling much better than before, and back pain is less”; and

(iv) On behalf of Aviva, Dr. Khan, general practitioner, assessed Nikolce Arsovski on July 11, 2019. Dr. Khan diagnosed Nikolce Arsovski with “left trapezius strain, left scapular strain and lumbar spine sprain/strain.” Nikolce Arsovski demonstrated normal ranges of motion. Dr. Khan concluded that Nikolce Arsovski’s injuries were predominantly minor and there was no evidence of a pre-existing condition that would prevent maximal medical recovery if subject to the MIG limit. I agree.

10The medical evidence submitted by Nikolce Arsovski and Aviva confirm that Nikolce Arsovski’s physical injuries are consistent with those that would be defined as a “minor injury”. Indeed, Nikolce Arsovski did not provide any clinical notes and records from Dr. Khan or the treatment provider that demonstrate an objective medical opinion that corroborates Nikolce Arsovski’s subjective severity of his physical injuries. Nikolce Arsovski has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.

Did Nikolce Arsovski sustain psychological injuries that remove him from the MIG?

11On review, I find the evidence does not support that Nikolce Arsovski’s psychological impairments would remove him from the MIG. My finding is based on the following:

(i) Nikolce Arsovski relies on the OCF-18 as evidence of the severity of his alleged psychological impairment;

(ii) There is no evidence from Dr. Gupta of any psychological complaints, prescriptions for psychological medications, or any referrals for psychological treatment; and

(iii) In the s. 44 insurer examination report³, Nikolce Arsovski denied any changes with respect to his cognitive functioning and described his mood and sleep as “good”. Nikolce Arsovski denied experiencing panic attacks, and regarding motor vehicle travel, is more cautious. He denied any anxiety as a passenger or pedestrian. Of significant note, Nikolce Arsovski denied a need for any mental health treatment.

12A treatment plan is not enough to establish entitlement to treatment. Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that Nikolce Arsovski suffers from a psychological impairment that is not subject to the MIG. To be removed from the MIG, a psychological diagnosis requires the development of ongoing, substantive post-traumatic symptomology or clinically significant psychological impairment. On a balance of probabilities, I find Nikolce Arsovski has not met his burden of proof.

Are the treatment plans reasonable and necessary?

13Having determined that Nikolce Arsovski’s accident-related impairments are properly within the MIG, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary under s.15. As no benefits are payable, it follows that no interest is payable under s. 51

CONCLUSION

14Nikolce Arsovski sustained injuries that are treatable within the MIG. As the MIG limits have been exhausted, the treatment plans are not reasonable and necessary.

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. 3Insurer Psychology Report by Dr. Goodfield dated July 24, 2019