Released Date: 05/03/2021
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:
Peter Lulic
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Sevda Guliyeva, Paralegal
For the Respondent:
April Snow, Counsel
HEARD:
Via Written Submissions
OVERVIEW
1The applicant was involved in an accident on May 9, 2018, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied the benefits based on its determination that the applicant sustained predominantly minor injuries subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
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 and in the MIG?
b. Is the applicant entitled to $2,925.60 for chiropractic services recommended by Dan Shlepakov in a treatment plan (OCF-18) submitted January 17, 2019 and denied January 25, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that he sustained accident-related injuries that warrant treatment beyond the MIG. He is not entitled to the OCF-18 or interest.
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. In all cases, the burden of proof lies with the applicant.
5The applicant submits that his pre-existing condition of Ataxia was exacerbated by the accident, which has resulted in pain and difficulties carrying out his daily activities, warranting removal from the MIG. He submits that his consistent attendance at treatment, continuous complaints and the fact that he incurred the treatment plan in dispute is compelling evidence that he sustained a physical impairment beyond the MIG. To this end, he relies on an OHIP summary, an excerpt from the Mayo Clinic on Ataxia, hospital records, the clinical notes of his family physician, Dr. Choi, his OCF-3 and OCF-24.
6In response, Aviva submits that that applicant has not produced evidence to prove on a balance of probabilities that his accident-related injuries were not minor or that a pre-existing condition prevents maximal medical recovery under the MIG. I agree with Aviva and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
7To begin, the actual physical injuries identified in the OCF-3 are all clearly minor injuries as a defined by the Schedule, as they are listed as sprain and strain injuries to his chest, ribs, shoulder and knee. The OCF-24 provides no information about his accident-related injuries, current or ongoing, that would suggest they fall outside of the definition provided by s. 3(1). The diagnostic imaging report of his chest revealed no fractures or issues that were not degenerative. The clinical notes of Dr. Choi reveal two accident-related complaints. A note of May 14, 2018 indicates chest bruising, but there is no indication that it was not a minor injury and no medication was prescribed. There is a note that he returned to work on June 1, 2018, which suggests, in my view, that his physical injuries had resolved, which undermines the self-reporting in Dr. Shlepakov’s OCF-18 that he was experiencing difficulty shopping, doing housework, climbing stairs, sitting and standing in January 2019, or seven months later. There are no contemporaneous notes to support this, so it is difficult to see how any functional impairment resulted.
8Next, with regard to s. 18(2), an applicant may be removed from the MIG if they have compelling evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that will preclude maximal medical recovery if they are kept within the confines of the MIG. Here, the applicant asserts that he was diagnosed with Ataxia by Dr. Bekhit on March 30, 2016, a condition that would negatively affect his motor skills and physical functioning, which justifies treatment beyond the confines of the MIG. I disagree.
9This position is problematic for several reasons. First, it appears that the applicant’s evidence to support this diagnosis is not based on a clinical note but rather based on a single OHIP Summary entry which actually reads “signs and symptoms not yet diagnosed of the nervous system – convulsions, ataxia.” Dr. Bekhit’s actual clinical notes were not filed to provide more context on this condition and the specific code could apply to myriad conditions. Second, if the applicant does indeed have Ataxia, it is not reflected in any of the clinical notes and records of Dr. Choi or Dr. Hu in the years that follow and the applicant’s submissions do not provide analysis on how this condition is affecting him or was exacerbated by the accident. Third, as evidence of the effects of Ataxia, generally, the applicant submitted an online excerpt from the Mayo Clinic, which is clearly not objective supporting evidence of his specific condition and how the accident may or may not have affected it. Finally, and most fatal to the applicant’s claim, is the fact that there was no opinion from a medical practitioner provided to demonstrate that the alleged pre-existing condition would affect the applicant’s ability to recover from his accident-related impairments if he is kept within the MIG. This is the requirement of s. 18(2). Suffice to say, the applicant’s submissions and evidence do not meet the compelling requirement.
10Accordingly, for these reasons, I find the applicant has fallen well-short of demonstrating on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Is the treatment plan reasonable and necessary?
11Having determined that the applicant has not demonstrated that treatment beyond the MIG is required, an analysis of whether the treatment and assessment plan in dispute is reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
12The applicant has not demonstrated that he sustained accident-related injuries that warrant treatment beyond the MIG. He is not entitled to the OCF-18 or interest.
Released: May 3, 2021
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.