Release date: 06/25/2021
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:
Rajmanjit Kaur
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Marina Korshunova, Paralegal
For the Respondent:
Chantalle Youkhana, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on October 13, 2016, 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:
i. Did the applicant sustain predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG limits?
ii. Is the applicant entitled to a medical benefit in the amount of $1,842.15 for chiropractic services recommended by Derry Road Physiotherapy submitted on May 25, 2020 and denied June 8, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The applicant is not entitled to payment for the treatment plan in dispute, interest or a s. 10 award.
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 her accident related injuries—identified as chronic right shoulder, neck and back pain, as well as headaches—prevented her from returning to work until March 2017 and warrant treatment beyond the MIG. The applicant was involved in two previous accidents, in 2004 and 2010, where she sustained injuries to her neck and back that she submits never completely resolved. She also submits that she has degenerative changes in her knees, was diagnosed with anxiety and depression in 2013, hypertension in 2014 and sleep apnea in 2016. Finally, she asserts that Aviva should be prevented from taking the position that the MIG applies to her claim because its notice did not meet the requirements of s. 38(9) of the Schedule.
6In response, Aviva submits that the applicant has consistently been diagnosed with soft-tissue injuries from the subject accident and that there is no evidence to support that her impairments from her previous accidents had not resolved or that any of her pre-existing conditions would prevent her recovery if she is kept within the MIG. It submits that the applicant’s assertion that she suffers from chronic pain does not accord with the medical evidence and her complaints related to pain in her knees, back, shoulder and head are not related to the accident where she complained of these issues prior to the accident. Aviva submits that the applicant has never been diagnosed with chronic pain and relies on several multidisciplinary s. 44 reports that all found the applicant sustained minor injuries and that further treatment was not reasonable and necessary.
7I agree with Aviva and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. First, the actual physical injuries that are consistently identified in the medical documentation, in the applicant’s OCF-3’s and in the diagnostic imaging are all sprain and strain-type injuries that fall squarely within the definition of minor injury under the Schedule. There is no evidence of a tear or fracture. The s. 44 reports of Dr. Weisleder, Dr. John and Dr. Auguste all diagnosed the applicant with cervical, thoracic and lumbar strain injuries, treatable within the MIG, which is supported by the impairments listed in both of the applicant’s OCF-3’s.
8With 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. While the applicant identifies several pre-existing conditions in her submissions, she did not direct the Tribunal to an opinion from a medical practitioner that these conditions would prevent her recovery from her accident related impairments if she is kept within the MIG, which is the requirement for removal from the MIG under s. 18(2). It is not sufficient to simply have had an impairment or condition that was previously documented and especially so where none of the s. 44 assessors were able to identify a pre-existing condition that would prevent the applicant’s recovery. In any case, it is unclear how sleep apnea, hypertension or degenerative changes would prevent recovery from soft-tissue impairments if the applicant is kept within the MIG.
9The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, while the applicant has never been diagnosed with chronic pain or chronic pain syndrome, she submits that her consistent pain complaints support removal from the MIG. While the applicant is correct that chronic pain or chronic pain syndrome is not captured within the MIG, the Tribunal has consistently determined that for removal from the MIG on this ground, there must be a diagnosis, or the chronic pain must be accompanied by evidence of functional impairment.
10Here, while the applicant may have lingering pain, her complaints to her treating physicians are limited after July 2017, which coincides with her stopping treatment. While there are sporadic pain complaints into 2018, there is no discussion of the severity of the applicant’s pain, how it is causing her functional impairment, whether it is bearable with or without pain medication, with or without treatment, etc. or even that it is directly attributable to the accident. While it appears that the applicant was off from work as a general labourer until March 2017, there is little objective evidence in the clinical notes and records of Dr. Sira or Dr. Gill after this date to support a functional impairment or a chronic pain condition. Indeed, Dr. Dhillon’s July 23, 2018 visit note states that the applicant’s arm and shoulder pain has been “on/off since mva 2 years ago” which is not particularly supportive of a “chronic” pain designation causing functional impairment. Notably, the applicant has never even been referred to a chronic pain specialist.
11Further, putting aside the fact that there has never been a chronic pain diagnosis despite regular physician visits, where the applicant made back pain complaints as far back as 2014 pre-accident, purportedly had a slip and fall in or around May 2017, and is not reliant on pain medication or treatment, it is difficult to find that this pain is attributable to the accident or, more specifically, that it requires intervention outside of the MIG because it is a chronic pain condition with functional impairment. Accordingly, I find the applicant has not demonstrated on a balance of probabilities that her accident-related pain warrants removal from the MIG.
Is the treatment plan reasonable and necessary?
12Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plan in dispute is reasonable and necessary under s. 16 is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
13However, for completeness, the applicant asserts that Aviva is precluded from taking the position that the MIG applies due to its failure to comply with s. 38(9) and failure to address the MIG via a s. 44 assessment, thus making the OCF-18 in dispute payable. The applicant submits that she provided records from Dr. Sira and the hospital in January 2017 that are compelling evidence of an impairment outside of the MIG. As noted above, the medical evidence submitted by the applicant is not particularly compelling, as it consistently indicates that she sustained soft-tissue injuries. As of this hearing, let alone in January 2017, there remains limited evidence to support an injury outside of the MIG.
14In any case, the OCF-18 in dispute was received by Aviva on May 25, 2017. Section 38(8) requires the insurer to respond with a determination within 10 days of receipt, while s. 38(9) requires the insurer to notify the applicant if it believes the MIG applies to their claim. To be frank, it is difficult to fathom how Aviva’s letter dated June 8, 2017 does not satisfy this low bar or how it could possibly be described as “vague”, as the applicant suggests: it was delivered on the 10th business day; it acknowledges receipt of the OCF-18 claim; states that the recommending practitioner, Dr. Rathore, has not provided evidence to support a diagnosis outside of the MIG; cites to three different s. 44 reports that all found no further treatment or investigation was recommended; reminded the applicant that it was her responsibility to provide compelling evidence of an impairment outside of the MIG (then explains that compelling evidence is not just a diagnosis but evidence that she is prevented from recovery if kept within the MIG); states that the applicant has not exhausted the MIG limits as it had only paid $3,280.26 in benefits to date; and then concludes by stating that the applicant’s impairment has not been deemed to be outside of the MIG and provides all of the information necessary for the applicant to dispute the decision. It is one of the more comprehensive denial letters I have seen.
Section 10 Award
15The applicant also sought an award under s. 10 of O. Reg. 664 but offered no submissions on same. Under s. 10, the Tribunal may award up to 50 percent of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Where the applicant is within the MIG, where no benefits are overdue and where no specific submissions were made, I find an award is not appropriate.
CONCLUSION
16The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The applicant is not entitled to payment for the treatment plan in dispute, interest or a s. 10 award.
Date of Issue: June 25, 2021
________________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.