Michael DiGiacomo v. Aviva General Insurance, 2021 CanLII 60465

20-001986/AABS

Released Date: 07/05/2021

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:

Michael DiGiacomo

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Victoria Yang, Counsel

For the Respondent:

James Brown, Counsel

HEARD:

Via Written Submissions

OVERVIEW

1The applicant was injured in an accident on September 16, 2018 and sought medical and rehabilitation benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The respondent denied the benefits 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 applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are to be decided:

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 $823.72 for physiotherapy services, recommended by Cor Maximus in a treatment plan (OCF-18) dated March 12, 2019?

c. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not demonstrated that removal from and treatment beyond the MIG is warranted. The parties agree that the maximum amounts available under the MIG for medical and rehabilitation benefits have been exhausted there is no further entitlement therefore it is not necessary to determine if the disputed treatment plan is reasonable and necessary. As no benefits are due and owing there is no entitlement to 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. 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 argues that he has documented pre-existing impairments and conditions that will prevent him from achieving maximal medical recovery. Specifically, the applicant submits prior to the accident his medical conditions include chronic pain and specifically chronic pain in his right shoulder/trapezius, neck and back. The applicant submits that if he remains confined to the MIG, as a result of his pre-accident conditions and injuries from the accident, that he is unable to reach maximal recovery. The applicant argues that prior to the accident he was able to complete some household tasks and as a result of the accident that functionality has been lost. As well the applicant submits that the medical evidence shows that the applicant requires further treatment and therefore, he should not be confined to the MIG.

6The respondent agrees that prior to the accident the applicant suffered from documented pre-existing medical conditions. The respondent submits that the Schedule requires the applicant to produce compelling evidence that the pre-existing condition will prevent him from achieving maximal recovery from the accident related injuries if the applicant is subject to the $3,500.00 limit. The applicant has failed to provide a medical opinion regarding the ability to achieve maximal recovery under the MIG and the evidence shows that the applicant has in fact recovered from his accident-related injuries within the $3,500.00 limit.

7The onus is on the applicant to prove on a balance of probabilities entitlement to the benefit. This includes proving that the injuries should not be subject to the MIG. It is accepted that the applicant had pre-existing conditions, however that is not enough as s. 18(2) specifically requires that the applicant show that he is prevented from achieving maximal medical recovery under the MIG. The applicant has not met this onus, for the reasons noted below.

8The applicant has provided plentiful evidence to show that he had pre-existing medical conditions, however the applicant has not provided a medical opinion or evidence from his treating doctors that he requires treatment outside of the MIG to reach maximal medical recovery.

9The OCF-23 of September 23, 2018 (one week post-accident) and an OCF-18 dated December 19, 2018 noted the accident related injuries as Whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, dorsalgia, cervicalgia, low back pain and muscle strain.

10The applicant submits that the pre-existing chronic pain in his right shoulder/trapezius, neck and lower back left him vulnerable to further injury in those areas, requires more treatment.

11The applicant argues that prior to the accident that he was receiving lidocaine infusions and after the accident he had to increase these injections to once per week. The evidence however does not show an increase in injections and shows that the same treatment that took place prior to the accident continued post accident. The report of Dr. Bodley of November 27, 2017 confirms that prior to the accident the applicant was receiving lidocaine infusions once every 10-12 weeks. The applicant submits that post-accident he was now attending once per week, however the records of Dr. Bodley show that the applicant continued lidocaine infusions starting mid 2018 (prior to the accident) and continuing in 2019 on the following dates: July 17, 2018(pre-accident), September 25, 2018, December 20, 2018, March 25, 2019, June 14, 2019, September 10, 2019 and December 17,2019. Thus, based on the evidence, the applicant continued to receive the injection 10-12 weeks apart, i.e. the same frequency as pre-accident.

12The applicant submits that prior to the accident the applicant had increased functionality and would do such things as shoveling snow. The applicant submits that post-accident the small gains in function that he made pre-accident were now lost post-accident. I am not pointed to any evidence about the applicant’s specific functionality pre and post accident with respect to household chores and snow shoveling. The clinical notes and records of Cor Maximus of February 15, 2019 and March 5, 2019 do however note that the applicant is driving, and snow shoveling. There are notations about the use of a snowblower with the shoveling. Again, there is no medical opinion with respect to the difference in the functionality of the applicant and how keeping the applicant in the MIG prevents the applicant from reaching maximal medical recovery from his accident related injuries.

13The applicant relies on the note of the physiotherapist Ms. Richer who opines that the clinic did not have a chance to fully treat the applicant’s injuries. There is no further explanation as to why this is or what her opinion means, other than she is recommending further treatment. Ms. Richer describes the applicant’s main complaint as an aggravation of a pre-existing injury to the right upper extremity. The initial OCF-23, the OCF-18 of December 19, 2018 and the subsequent OCF-18 that is recommending treatment do not make any diagnosis or notations of an injury to the applicant’s right arm as a result of the accident.

14The applicant had increased pain levels following the accident, the evidence shows that the applicant sustained physical injuries that were minor in nature. The applicant had the onus to show that these minor injuries cannot be treated within the MIG because if he is confined to the MIG than he could not reach maximal medical improvement due to his pre-existing medical conditions. The applicant has not met his evidentiary burden and has provided no medical opinion that due his pre-existing medical conditions he requires treatment outside of the MIG.

15The applicant submits that no weight be placed on the assessments conducted pursuant to s.44. I find that I do not need to make findings with respect to the weight of the reports, as the s.44 assessments do not assist the applicant in meeting his evidentiary burden.

16Therefore, based on the evidence filed and for the reasons noted above the applicant remains confined to the MIG.

Are the treatment plans reasonable and necessary and is interest payable?

17Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required as the MIG limits for treatment have been exhausted. As no benefits are overdue, no interest is payable.

CONCLUSION and ORDER

18The application is dismissed in its entirety.

Footnotes

1. 1O.Reg. 34/10, as amended