Gera v. Aviva General Insurance
Release date: 09/07/2021
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:
Deepa Gera Applicant
and
Aviva General Insurance Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Linda To, Paralegal
For the Respondent: Catherine Zingg, Counsel
HEARD: By way of written submissions
OVERVIEW
1Deepa Gera, ("the Applicant") was injured in an automobile accident on January 2, 2017 and sought benefits from Aviva General Insurance, ("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 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:
- Are the Applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
- Is the Applicant entitled to $3,641.09 for physiotherapy, recommended by Novo Medical Services in a treatment plan (OCF-18) dated October 20, 2017?
- Is the Applicant entitled to $6,584.38 for psychological treatment, recommended by Elite Specialist Group in an OCF-18 dated January 15, 2018?
- Is the Applicant entitled to $2,638.54 for a psychological assessment, recommended by Dr. Andrew Shaul in a treatment plan dated January 15, 2018?
- Is the Applicant entitled to $1,995.33 for a psychological assessment, recommended by Dr. Romeo Vitelli in a treatment plan dated August 2, 2017?
- Is the Applicant entitled to the assessments recommended by Novo Medical Centre as follows: i. $2,200.00 for a chronic pain assessment, in a treatment plan dated December 12, 2017? and ii. $2,219.74 for a driving evaluation, in a treatment plan dated April 30, 2018? and iii. Is the Applicant entitled to $2,090.00 for social work assessment, in a treatment plan dated July 23, 2018?
- Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the Applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.
5The Applicant is not entitled to the disputed treatment and assessment plans, nor interest.
BACKGROUND
6The Applicant was the front-seat passenger of a sedan which had a side collision with a truck while making a left turn at a suburban intersection. Police attended at the scene of the accident, but ambulance did not. Family members drove the Applicant home from the scene of the accident. She went to her family physician, Dr. L. Banjee, two days later and complained of neck and back pain. The Applicant was assessed and advised to start physical therapy and massage therapy and to follow up as needed, and if symptoms worsened. Dr. Banjee also advised the Applicant that she may benefit from supportive counselling and prescribed anti-inflammatory medication.
7The Applicant started treatment at Wanless Rehab and Wellness Clinic around January 7, 2018, pursuant to the MIG. She has exhausted the $3,500.00 funding limit for treatment, as provided by the MIG. She seeks a determination that her accident-related injuries fall outside the "minor injury" definition and claims entitlement to the disputed treatment and assessment plans.
THE MINOR INJURY GUIDELINE
8The 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. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9If an insurer deems an insured's injuries to be minor in nature, the responsibility is on the insured to establish that the MIG, and the related funding limit, should not apply.
10I have reviewed the submissions and evidence and find that the Applicant sustained a predominantly minor injury as defined by the Schedule. She is not entitled to the disputed treatment and assessment plans because they propose treatment outside the MIG and beyond the $3,500.00 funding limit on treatment.
Chronic Pain
11I find that the Applicant's ongoing, intermittent knee pain is not as a result of the subject accident, as she submits. The records from the time period immediately following the accident make no reference to knee pain or trauma. The Applicant never reported to have struck her knees and her immediate pain complaints were back and neck related. She was prescribed physiotherapy and massage therapy for back, leg, and knee pain in 2014. Again, in 2016, the Applicant complained of bilateral knee pain which was attributed to her working up to 12 hours a day. An ultrasound and x-ray report of July 27, 2016, about 6 months pre-dating the accident, found that the Applicant sustained lateral collateral ligament sprains and developed osteoarthritis. Considering the above, I am unable to find that the Applicant's ongoing knee pain is as a result of the accident.
12Likewise, I find the Applicant's lingering neck and back pain are likely as a result of degenerative changes rather than the subject accident. X-rays from May 2017 and an MRI from October 2017 show mild to moderate degenerative changes in her back. I am unable to connect the degenerative changes in the Applicant's back to the subject accident and it is more likely that the issues predate it.
13The above findings are supported by the November 6, 2017 insurer's examination ("IE") report of Dr. A. Belfon, physician. Dr. Belfon assessed the Applicant, reviewed the available documents, which included Dr. Banjee's CNRs, and found that she presented with uncomplicated sprain/strain injuries with preserved range of motion, strength, and no positive orthopaedic findings. The assessment included a neurological examination, which produced normal results.
14There is no evidence to show that the Applicant is functionally impaired as a result of ongoing pain. The Applicant's employment requires her to stand for prolonged periods and she was able to return to work a few days following the accident. Further, contrary to her submissions, her family physician only noted a restriction to her range of motion once. This occurred only 2 days following the accident, during her first visit with Dr. Banjee to discuss the accident. Dr. Banjee's CNRs include no other evidence that the Applicant experiences restricted range of motion in any part of her body. Similarly, there is no restricted range of motion evidenced in the CNRs from Dr. I. Kaur, family physician, whom the Applicant sees at a walk-in clinic.
15I acknowledge that the Applicant went to the hospital on October 26, 2018, due to sciatica. However, one incident is not evidence of an ongoing functional impairment or chronic pain condition as a result of the accident. Further, the records from that date note that the Applicant engaged in physiotherapy (following the accident) in 2017 and "has not required any further physio." Likewise, Dr. Banjee's comment of "chronic pain in shoulder, back and knee" is uncompelling evidence of a chronic pain condition which would remove the Applicant from the MIG. To me, this comment is used to describe the Applicant's complaints and is not a formal diagnosis of a chronic pain condition. In any event, a diagnosis of chronic pain does not automatically remove the Applicant from the MIG and the funding limit on treatment if there is no evidence of a functional impairment as a result of that pain.
Psychological Injuries
16While I agree that the Applicant experienced some symptoms of a psychological injury, I find that the symptoms do not rise to the level required to remove her from the MIG.
17Dr. Banjee's CNRs fail to support any psychological diagnosis. The Applicant reported some nervousness immediately following the accident but was counselled by her physician for it during the same visit. The remainder of Dr. Banjee's CNRs show no compelling evidence of the Applicant experiencing psychological symptoms.
18I find that the reports of psychologists Dr. R. Vitelli, dated May 21, 2017, and Dr. A. Shaul, dated September 27, 2017, are anomalous with the balance of the Applicant's medical record and thus, I prefer the IE report of Dr. S. Moshiri, dated November 6, 2017.
19Dr. Moshiri's assessment and report are likely a more accurate reflection of the Applicant's medical condition because it included a review of Dr. Banjee's CNRs and used an interpreter. Dr. Vitelli's assessment and report included a review of only a psychological assessment pre-screen, the psychological test results, and a disability certificate dated January 7, 2017. Dr. Vitelli wrongly states that the Applicant was the driver of the vehicle involved in the accident and recommends driver desensitization, even though the Applicant does not drive. There is no evidence to suggest that Dr. Shaul ever reviewed or cross-referenced the Applicant's answers in the clinical interview with any medical records. Further, the clinical interview in Dr. Shaul's assessment was conducted by a psychotherapist, not Dr. Shaul.
20Dr. Moshiri's assessment and report concluded that the Applicant's complaints do not support a formal diagnosis of adjustment disorder and her in-vehicle nervousness is not of the extent and intensity to establish a diagnosis of vehicular phobia, despite exhibiting some symptoms of depression and anxiety. Dr. Moshiri noted that the Applicant denied suffering from feelings of depression and anxiety and stated that "psychologically, I am okay" and that the Applicant would rather physical treatment. The information in Dr. Moshiri's report is most analogous with the information in Dr. Banjee's CNRs.
21For the reasons above, I find that the Applicant sustained a predominantly minor injury as defined by the Schedule. Her ongoing intermittent knee and back pain and minor psychological symptoms do not raise to the level to upset the predominance of her minor injury. As a result, she is subject to the MIG and the $3,500.00 funding limit on treatment.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
22The Applicant exhausted the $3,500.00 funding limit for minor injuries. Considering this, an analysis of whether the treatment and assessment plans are reasonable and necessary is not required.
INTEREST
23Interest is only payable on any overdue payment of benefits pursuant to section 51 of the Schedule. As no payments are overdue, no interest is payable.
CONCLUSION
24The Applicant sustained uncomplicated soft tissue injuries as a result of the accident. I find on the evidence that her intermittent back, neck, knee and shoulder pain prior to and after the accident is as a result of degenerative issues which are unrelated to the accident. To me, upon review of the evidence, the Applicant's accident-related injuries and her pre-existing medical condition had no measurable impact on each other. While the Applicant experienced some nervousness immediately following the accident, she was counseled by her family physician during the same visit and sustained no psychological impairment as a result of the accident. I find that the Applicant sustained a predominantly minor injury as a result of the accident for these reasons.
25The Applicant is subject to the $3,500.00 funding limit for minor injuries. She is not entitled to the disputed treatment plans because she has exhausted the $3,500.00 funding limit.
26No interest is owed.
Date of Issue: September 7, 2021
_______________________
Brian Norris, Adjudicator