Released Date: 06/01/2021
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:
McDonald Bowen
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Sarah Fasih, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on August 10, 2017, 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 MIG?
b. Is the applicant entitled to $5,347.23 for physiotherapy services and assistive devices recommended by Dr. Tran in a treatment plan dated January 2, 2018?
c. Is the applicant entitled to $3,699.44 for psychological services recommended by Dr. Keeling in a treatment plan dated January 28, 2018?
d. Is the applicant entitled to interest on the overdue payment of benefits?
result
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment plans in dispute are not reasonable and necessary and no interest is payable.
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 or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that he should be removed from the MIG on the basis of his pre-existing conditions, his chronic pain and his psychological impairment. In response, Aviva submits that the applicant sustained predominantly minor injuries as a result of the accident, that there is no medical evidence that his pre-existing conditions which are largely age-related meet the requirements of s. 18(2), that there is no evidence that his chronic pain causes functional impairment and that removal from the MIG on psychological grounds is not warranted where the applicant has denied the need for psychological treatment.
6I agree with Aviva and find that the applicant has not demonstrated that his physical accident-related impairments warrant removal from the MIG. The actual physical injuries identified in the OCF-3 are all sprain and strain injuries to the shoulders and cervical and lumbar spine. The letter from Dr. Tran dated August 24, 2017 reveals a diagnosis of sprain and strain injuries to the applicants cervical, thoracic and lumbar spine, ribs, sternum and SI joint and bilateral rotator cuff syndrome, headaches and dizziness. While I am alive to his pain complaints in the months following the accident, on the medical evidence, I find there is limited indication that his physical accident-related impairments should be considered outside of the definition of a minor injury under s. 3(1). The diagnostic imaging reports in evidence consistently reveal minor injuries and degenerative changes and no fractures. Further, the s. 44 report of Dr. Tepperman found no musculoskeletal impairments, no neurological impairment and ultimately diagnosed soft-tissue injuries. On the medical evidence, there is nothing to support an injury outside of the MIG.
7With regard 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 will preclude maximal medical recovery if they are kept within the confines of the MIG. As an 84-year-old gentleman, there is no dispute that he has several ailments that pre-date the accident, primarily his diabetes, spinal stenosis and osteoarthritis. There is also indication in the clinical notes and records dating back to 2015 that he has pre-existing injuries to his back and knee, as well as a shoulder tear. However, while his pre-existing conditions are well-documented, they are largely age-related or degenerative conditions. Further, I agree with Aviva that there is no indication that these impairments would prevent maximal medical recovery if kept within the MIG, as is required by s. 18(2). Indeed, I find the applicant attends at his family physician with some regularity, and yet, his family physician has not opined that his recovery from his accident-related impairments will be prevented by his pre-existing conditions if he is kept within the MIG. While Dr. Tran indicated in his progress report that the applicant’s short-term prognosis for recovery would be fair, owing to his diabetes and arthritis, Dr. Tepperman found no indication that his hypertension or diabetes would prevent him from reaching maximal medical recovery from uncomplicated soft-tissue injuries if he is kept within the MIG. In my view, this evidence falls well-short of the compelling standard required for removal from the MIG under s. 18(2).
8The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, the applicant points to a March 2018 entry from his family physician stating “chronic pain.” However, as Aviva notes, it appears that the applicant, at 84 years old and with several degenerative conditions, has been living with intermittent pain for quite some time that he treats with pain medication and injections, so I agree that it is difficult to find that it was the accident that caused his chronic pain or that the accident exacerbated same. The note does not state that chronic pain is a result of the accident and there is no mention of accident-related pain until a February 28, 2019 entry that states that the applicant reported “pain in R shld/neck since MVA 2017.” There is no discussion of the level of pain or how it was affecting the applicant.
9In any event, an entry noting chronic pain or a pain complaint is not akin to a diagnosis of chronic pain or chronic pain syndrome and the Tribunal has consistently held that an applicant must demonstrate that they have chronic pain causing functional impairment as a result of the accident. While he submits that his pain is affecting his daily activities, there is limited discussion of what this entails or how the applicant’s pain is causing him functional impairment where he reports being able to perform his personal care tasks and describes his pain as intermittent. The family physician offered a referral to a chronic pain clinic that the applicant refused. As the notes move further away in time from the accident, the accident-related pain complaints dwindle. There is no engagement with any of the six criteria for chronic pain under the AMA Guides. Where the physical injuries are all sprain and strain-type injuries, where the applicant declined a referral to a chronic pain clinic, where the applicant has several degenerative conditions and where his complaints decrease as expected, I find limited evidence to support removal from the MIG on the basis of chronic pain as a result of the accident.
10Finally, an applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant relies on Dr. Keeling’s January 26, 2018 report where he diagnosed adjustment disorder with mixed anxiety and depressed mood and specific driving phobia, suggesting removal from the MIG. In submissions, he states that without psychological treatment, his condition can deteriorate and “he will continue to be trapped in a cycle of psychological impairments.”
11However, Aviva points to the dearth of psychological complaints in the family physician records, the s. 44 report of Dr. Day dated July 11, 2018, who found no evidence of an accident-related psychological impairment and the applicant’s self-reporting from that assessment that he identified no mental health issues and “adamantly and unambiguously stated that he does not feel that he requires psychological treatment and was surprised that he was referred for a psychological assessment. He does not perceive himself to have any psychological symptoms that require intervention.” Despite having the benefit of reply, the applicant did not provide submissions to refute that he made this statement, which in my view, undermines his submissions on this ground.
12I agree with Aviva and find this evidence difficult to ignore. As Aviva points out, the applicant made no psychological complaints to his family physician despite attending with some frequency in the years post-accident. The OCF-3 does not identify psychological or emotional symptoms. In this vein, it is unclear what prompted Dr. Tran’s referral for a psychological assessment and especially so where the applicant himself seems to have adamantly denied the need for the psychological treatment proposed by Dr. Keeling. In my view, this calls into question the veracity of Dr. Keeling’s diagnosis and suggestion that the applicant sustained psychological impairments outside of the MIG, which I find is not supported by the rest of the medical evidence or by the applicant’s self-reporting.
13Accordingly, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG. On the evidence, I see no reason to interfere with Aviva’s determination.
Are the treatment plans reasonable and necessary?
14Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required.
CONCLUSION
15The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment plans in dispute are not reasonable and necessary and no interest is payable.
Released: June 1, 2021
__________________________
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.