Keir v. Aviva Insurance Company of Canada, 2021 CanLII 48255

Citation: Keir v. Aviva Insurance Company of Canada, 2021 ONLAT 20-001463/AABS

Released Date: 05/31/2021

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:

Ancellma Keir

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Lawrence H. Calenti, Counsel

For the Respondent:

Vicky Chan, Counsel

Heard by way of written submissions

OVERVIEW

1Ancellma Keir, (“the Applicant”), was injured in an automobile accident on August 29, 2018 and sought benefits from Aviva Insurance Company of Canada (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The Respondent determined the Applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. As a result, the Applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. 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 Minor Injury Guideline?
2. Is the Applicant entitled to $1,619.14, less $1,100.00 approved by the Respondent, for physiotherapy services, recommended by VIP Physiotherapy in a treatment plan submitted on July 24, 2019?
3. Is the Applicant entitled to $2,000.00 for a psychological assessment, recommended by Network Health Assessment & Rehabilitation Centres in a treatment plan submitted on November 28, 2018?
4. Is the Applicant entitled to $112.81 for an OCF-3, completed by Dr. Bradley Sugar, as submitted to the Respondent on October 19, 2018?
5. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant sustained a minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment.

5The Applicant is not entitled to the treatment plan dated July 10, 2019 because she exhausted the funding limit provided by the MIG.

6The Applicant withdrew her claim for a psychological assessment.

7The Applicant made no submissions claiming entitlement to the disputed cost of the disability certificate. Thus, she has failed to meet her burden to prove entitlement to the benefit.

8The Applicant is not entitled to any interest.

BACKGROUND

9The Applicant was the front-seat passenger of a vehicle which was struck on the driver’s side and had a secondary collision with a piece of infrastructure. Paramedics attended at the scene of the accident and transported the Applicant to the hospital. Her legs, arms, and hips were x-rayed, and she had a CT scan of her spine. The results found some mild degenerative changes to the sacroiliac joints and no acute fractures. She was discharged after a few hours and advised to follow up with her family physician.

10The Applicant was assessed at North Park Medical Centre two days later. The clinical notes from that visit confirm that the Applicant was in an accident. The records are generally illegible, but they reference “R hip” and appear to refer the Applicant to psychotherapy, physiotherapy, and massage. There is no record of any appointments or consultations as a result of the referrals.

11The Applicant submits that she went to Revive Health Centres twice a week for treatment for the period from a few days following the accident until December 2018. The clinical notes and records from Revive Health Centres are not before me.

12The Respondent characterized the Applicant’s injuries as a “minor injury” according to the Schedule. As a result, she was subject to the MIG and the $3,500.00 funding limit on medical benefits.

13The Applicant disagrees and submits that she should not be subject to the MIG due to pre-existing back pain and sciatica as a result of motor vehicle accidents on February 19 and 24, 2018. The Respondent submits that the Applicant’s injuries are properly classified as being found within the MIG and she has failed to discharge her burden to prove otherwise.

THE MINOR INJURY GUIDELINE

14The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply to the Applicant if her heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

15The Applicant submits that she has a documented pre-existing medical condition which precludes her recovery. She claims that her pre-existing back pain due to unresolved injuries in the February 2018 accidents impacts her recovery from the lumbar and cervical strains she sustained in the subject accident. She discounts the April 25, 2019 insurer’s examination (“IE”) report of Dr. S. Tu, physician, discussed in greater detail below. According to the Applicant, the report incorrectly notes no prior accidents and fails to provide an opinion on whether the Applicant’s injuries fall within the minor injury definition in the Schedule.

16The Respondent recognizes that the Applicant did physiotherapy as recently as eight weeks prior to the accident but submits that there is no indication that she continued to derive benefit from it after the accident. It further submits that it satisfied its obligation to continually adjust the Applicant’s claim on a good faith basis and that it is not obliged to schedule IEs.

The Applicant’s accident-related injuries

17The Applicant sustained lumbar and cervical strains as reported in the OCF-3 by Dr. Hussain, dated September 28, 2018. These injuries fall within the minor injury definition described in the Schedule. The Applicant’s submissions make no reference to any non-minor injury.

The Applicant’s documented pre-existing medical condition

18I find no compelling evidence of a documented pre-existing condition that will prevent the Applicant from achieving maximal recovery if subject to the MIG, as required by section 18(2) of the Schedule.

19The Applicant was diagnosed with sciatica following the February 2018 accidents but there is no evidence that shows it would, or did, preclude her recovery. The Applicant treated her sciatica with physiotherapy and an MRI report from March 21, 2018 found that the Applicant’s sacroiliac joints have a normal appearance. Dr. Hussein’s reference to unresolved sciatica in the OCF-3 dated September 28, 2018 fails, in my view, to upset the objective evidence in the March 2018 MRI. The lack of accident-related complaints by the Applicant to Dr. Hussein, despite visits on October 17, November 16, December 21, 2018 and May 1, 2019, indicate to me that her accident-related injuries need no further treatment.

20The CNRs from VIP Physiotherapy (“VIP”) are equally uncompelling. The Applicant reported eight years of unresolved back and neck pain in the initial assessment on March 12, 2018, though there is no evidence of this remarkable history in her medical record. As pointed out by the Applicant, she was referred for 24 treatments over the course of 12 weeks as a result of the February 2018 accidents. This argument fails to support her claim because the recommendation ends prior to the subject accident. The lingering pain reports throughout the records from VIP fail to meet the threshold to qualify as a pre-existing medical condition which would preclude the Applicant’s recovery if kept within the MIG. Further, there is no need to address the parties’ submissions on the admissibility of the attendance records from VIP, which were produced late, because the document provides no evidentiary benefit. The document describes scheduled appointments only and contains no medical information.

21The IE report by Dr. S. Tu, physician, dated April 25, 2019, found no objective musculoskeletal or neurological impairments. Dr. Tu opined that the Applicant likely suffered cervical, bilateral shoulder, and right hip strains. However, the doctor further commented that the Applicant’s symptoms appear to be out of proportion to what would be expected. Dr. Tu’s omission of Dr. Hussein’s September 28, 2018 OCF-3 note referring to unresolved sciatica is inconsequential. As noted above, Dr. Hussein’s note fails to upset the objective evidence in the Applicant’s medical record. Further, the fact that the report fails to refer to a specific document or set of records, namely Dr. Hussein’s CNRs, is not indicative that the records went unreviewed. It is, perhaps, evidence that the assessor found the records to be uncompelling.

22While it has little impact on my decision-making, I resolve the discrepancy in Dr. Tu’s report in favour of the assessor. The Applicant submits that she consistently reported her pre-accident history to all assessors, however, Dr. Tu indicated that she denied any prior accidents. To me, this is inconsequential considering the totality of the medical evidence on file. But, considering the issues described in the psychological IE below, I find the assessor’s perspective to be more credible.

23The IE report of Dr. M. Costa El-Hague, psychologist, found that the Applicant was suffering from a major depressive disorder but found no evidence that it is related to the subject accident. Dr. Costa El-Hague reported that the Applicant reported several psychological symptoms but denied any pre-accident emotional difficulties. However, the records indicate that she reported the same psychological symptoms in treatment and assessment plans dated August 16, and November 26, 2018, which relate to the February 2018 accidents. This evidence indicates that the Applicant was either untruthful with the assessor about her pre-accident medical status, or the Applicant’s psychological injuries are as a result of the February 2018 accidents.

THE DISPUTED TREATMENT PLANS

24The Applicant is not entitled to the disputed treatment plans. She has exhausted the funding available for a minor injury.

INTEREST

25Section 51 of the Schedule provides that interest is payable on overdue payments. No payments are owed or overdue and, as a result, no interest is payable.

CONCLUSION

26The Applicant sustained a minor injury as a result of the subject accident. She is subject to the $3,500.00 funding limit on treatment.

27The disputed treatment plan is not payable because the Applicant has reached the funding limit provided by the MIG.

28No interest is owed.