[PR] v. Aviva Insurance Company, 2021 CanLII 90554

Citation: [PR] v. Aviva Insurance Company, 2021 ONLAT 18-010436/AABS

Release date: July 9, 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:

[PR]

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Sandeep Johal, Vice Chair

APPEARANCES:

For the Applicant:

Aminder Hayher, Counsel

For the Respondent:

Michael Silver, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on October 30, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a passenger in a vehicle that was involved in an accident. As a result of the accident, the applicant complained of pain in her back, and neck as well as ongoing pain in her knees, ankles and shoulder.² Prior to the accident the applicant submits she had pre-existing pain in her bilateral knees, anterior cruciate ligament, and ankles. Furthermore, that she suffered from tennis elbow, polyalgia and osteopenia.

3The applicant applied for medical benefits and expenses that were denied by the respondent. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The issues in dispute are as follows:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

b. Is the applicant entitled to a medical benefit in the amount of $1,397.00 for physiotherapy services, recommended by Absolute Health in a treatment plan submitted on November 23, 2017 and denied on November 29, 2017?

c. Is the applicant entitled to a medical benefit in the amount of $1,397.00 for physiotherapy services, recommended by Absolute Health in a treatment plan submitted on November 23, 2017 and denied on November 29, 2017?

d. Is the applicant entitled to payments for the cost of examinations in the amount of $2,460.00 for a psychological assessment, recommended by Complete Rehab in a treatment plan submitted on July 12, 2018 and denied by the respondent on July 13, 2018?

e. Is the applicant entitled to an award for unreasonably withheld or delayed payments under s. 10 of Ontario Regulation 664?

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

5According to the respondent’s submissions, issue b. above was submitted on October 6, 2017 and denied on October 19, 2017.

6In the applicant’s submissions, she withdraws issue c. above, and therefore it will not be addressed as part of this decision.

RESULT

7For the reasons outlined below, I find the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.

8As the funding within the MIG limit has not yet been exhausted, I find the physiotherapy treatment plan to be reasonable and necessary up to the remaining MIG limit.

9The psychological assessment is not reasonable and necessary.

10The applicant is entitled to interest in accordance with the Schedule on the physiotherapy treatment plan.

11The applicant is not entitled to an award and the respondent is not entitled to costs.

ANALYSIS

Applicability of the Minor Injury Guideline

12The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

13The applicant bears the onus of establishing, on a balance of probabilities, her entitlement to coverage beyond the $3,500 cap for minor injuries.³

14The applicant submits that, as a result of the accident, she has pain in her back and neck as well as ongoing pain in her knees, ankles and shoulder. She further submits that she reported to the treatment provider, Absolute Health Centre, that she hit her knee on the front seat and her right elbow hit the door. She further reported that she was dizzy and scared.⁴

15The applicant visited with Dr. Majidi, chiropractor, who completed a disability certificate (“OCF-3”) where he diagnosed the applicant with:

a. whiplash associated disorder (WAD2), with complaints of neck pain, with musculoskeletal signs,

b. sprain and strain of the thoracic spine, lumbar spine,

c. dislocation, sprain and strain of joints and ligament of the shoulder girdle, elbow, hip and knees,

d. status migrainosus,

e. non-organic insomnia,

f. post-traumatic stress disorder,

g. generalized anxiety disorder, and

h. nightmares.⁵

16The applicant submits that she has been unable to achieve maximal medical recovery within the MIG limits, and therefore she should not be within the confines of the MIG.

17Furthermore, the applicant submits that she suffered from a pre-existing injury that hinders her from achieving maximal medical recovery within the MIG and that she continues to suffer from injuries to her back and neck that have not resolved within the MIG limit. As a result, she submits that she should be entitled to treatment outside the monetary limits of the MIG.

18Setting aside the pre-existing injuries and the psychological impairments, as noted in the OCF-3, which I will turn to discuss later in this decision, I find that the impairments listed within the OCF-3 disability certificate are those as defined within the MIG, namely the whiplash associated disorder and the sprain and strain type injuries.

19However, the applicant can still be found to be outside of the MIG based on pre-existing injuries or if a psychological impairment is found, which would be outside of the definition of the MIG if there is compelling evidence in support.

20I will first discuss whether the applicant has a psychological impairment sufficient enough to remove her from the MIG. Then I will discuss whether she has a pre-existing injury.

Does the applicant have a psychological impairment to remove her from the MIG?

21For the following reasons, I find that the applicant does not have a psychological impairment to be taken out of the MIG.

22The applicant submits that the OCF-3 states she has non-organic insomnia, post-traumatic stress disorder, generalized anxiety disorder and nightmares. Furthermore, the applicant points to the deficiencies of the respondent’s adjusting of the claim and its failure to send her to a psychological insurer examination (“IE”) in support of her position of psychological impairments.

23The respondent takes the position that the applicant has not submitted any clinical notes and records to suggest she has suffered from any psychological impairment as a result of the accident. Furthermore, the respondent submits that the applicant has failed to satisfy her onus to provide compelling evidence in support of a psychological impairment.

24After a review of the evidence, I agree with the respondent. In my view, an OCF-3 on its own is not compelling evidence in support of an impairment and arguing that there are deficiencies in the respondent’s adjusting of the claim does not satisfy the applicant’s onus to prove her case. Compelling evidence must be provided in support of an OCF-3 or a treatment plan to show that the applicant suffers from a psychological impairment that would remove her from the MIG. In the present case, I am not pointed to any evidence in support.

25As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological impairment that would warrant her removal from the MIG.

26I will now turn to discuss whether the applicant has a pre-existing injury to justify her removal from the MIG.

Pre-existing injuries

27Even if the applicant’s injuries fall within the definition of minor injury, she can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. She must meet all three of the following requirements in order to be removed from the MIG under this section:

a) have a pre-existing medical condition;

b) the pre-existing medical condition was documented by a health practitioner before the accident; and

c) the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

28For the following reasons, I find that the applicant has not satisfied her onus and has not provided evidence in support of her submissions of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

29The applicant submits that her medical records substantiate that she suffered from a pre-existing condition of osteoarthritis that hinders her from achieving maximal medical recovery within the MIG and that her back and neck injuries have not resolved within the MIG.

30The respondent submits that the applicant’s pre-existing injuries have not impeded her recovery to a sufficient degree that the MIG would not apply. Furthermore, the respondent relies upon the Tribunal case of 17-003554 v Aviva Insurance Canada,⁶ where it was held that although a pre-existing injury from which is alleged to have been made worse by the accident, the applicant in that case, failed to present compelling evidence, that the pre-existing injury is of a nature that impedes maximal recovery.

31I agree with the respondent. Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has presented. However, the last part of s.18(2) is where I find the applicant fails. There is no compelling evidence from any medical practitioner that her pre-existing condition will prevent her from achieving maximal recovery from the minor injury if she is limited to the $3,500 monetary limit.

32Without compelling evidence of all of the requirements of s. 18(2), the applicant cannot be considered to be outside of the MIG. The mere mention of a pre-existing injury or that the injury has been exacerbated from the accident is not sufficient on its own. There must be compelling evidence from a medical practitioner that the pre-existing condition will prevent the applicant from achieving maximal recovery. The applicant provides submissions that her pre-existing injury impedes maximal recovery, but she does not direct me to any evidence of such and submissions alone are not evidence.

33As a result, I find that the applicant has not persuaded me on a balance of probabilities that she has a pre-existing injury in accordance with s. 18(2) to be removed from the MIG.

34Despite finding that the applicant’s injuries fall within the definition of the MIG, the applicant submits that the MIG limit has not been exhausted. As a result, I will turn to discuss whether the treatment plan and the psychological assessment are reasonable and necessary.

Physiotherapy treatment plan in the amount of $1,397.00

35I find that the physiotherapy treatment plan is reasonable and necessary up to the remaining unused MIG limit for the following reasons.

36The applicant’s doctor has recommended treatment and the applicant also notes that she reports improvement after treatment. The IE assessor, Dr. Bardai, notes as part of his clinical impression that the applicant feels the rehabilitation she has been attending helps and the treatment effects last one or two days. The applicant reports improvement with treatment and following the stoppage of treatment her pain increased. As stated in D.O. v. Primmum Insurance Company,⁷ pain relief and pain reduction are reasonable and legitimate goals of treatment so that the applicant is able to engage in their daily activities without experiencing ongoing pain.

37I agree with the case of D.O. and would adopt that reasoning in finding that the treatment plan for physiotherapy is reasonable and necessary up to the monetary limits of the MIG. The applicant is entitled to treatment that helps alleviate her pain.

Psychological assessment

38For the following reasons I find that the psychological assessment is not reasonable and necessary.

39The applicant relies upon the OCF-3 in support of her claim for a psychological assessment and the fact that the respondent did not send the applicant to an IE.

40An OCF-3 and a treatment plan on its own are not compelling evidence in support of treatment or an assessment. Arguing that the respondent did not send the applicant for an IE is not, in my view, compelling evidence that the applicant may have psychological symptoms.

41Furthermore, the applicant has not directed me to any other medical documentation in support of the applicant’s request for a psychological assessment.

42As a result, I find that the psychological assessment is not reasonable and necessary.

Award

43I find that the applicant is not entitled to an award for the following reasons.

44The applicant has the onus to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments and I have not been persuaded that it was unreasonably withheld or delayed.

45The applicant submits that the respondent chose to ignore medical evidence and keep her in the MIG and because the respondent failed to approve the MIG limits.

46The respondent submits that it had a reasonable basis to determine that the applicant was not entitled to benefits claimed as a result of the IE assessment conducted by Dr. Bardai.

47After reviewing the party’s submissions and evidence, I am not persuaded that there was any unreasonably withholding or delaying the payment of benefits that could be considered inflexible, immoderate or stubborn on the part of the respondent. The respondent relied upon a medical opinion that the applicant’s injuries were predominantly minor injuries and that she had attained maximal medical recovery. The respondent is not held to a standard of perfection, despite my finding that the physiotherapy treatment plan is reasonable and necessary up to the MIG limits.

48The respondent’s denial of the physiotherapy treatment plan does not on its own, suggest the applicant is entitled to an award or that the respondent unreasonably withheld or delayed the benefit. A course of unreasonable conduct that could be considered inflexible, immoderate or stubborn on the part of the respondent in withholding or delaying the benefits is required to be shown and I have not been persuaded of such.

Costs

49The applicant seeks costs in the amount of $1,500 and the respondent seeks an unspecified amount of costs because, according to the respondent, the applicant made a frivolous claim with respect to an award and costs.

50Costs under Rule 19.1 may be ordered by the Tribunal where a party believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

51Neither party has provided proof of conduct that meets the threshold of Rule 19. The mere mention that a party’s claim for an award or costs is frivolous is not sufficient.

52As a result, I decline to make an order for costs.

ORDER

53For the reasons outlined above, I find the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.

54As the funding within the MIG limit has not yet been exhausted, I find the physiotherapy treatment plan to be reasonable and necessary up to the remaining MIG limit.

55The psychological assessment is not reasonable and necessary.

56The applicant is entitled to interest in accordance with the Schedule on the physiotherapy treatment plan.

57The applicant is not entitled to an award and the respondent is not entitled to costs.

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the applicant at Tab 2. Clinical Notes and Records of Dr. Mahendira.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
4. 4Written Submissions of the Applicant at Tab 4. Intake Form from Absolute Health Care dated November 7, 2016.
5. 5Written Submissions of the Applicant at Tab 5, OCF-3 dated November 7, 2016.
6. 62018 CanLII 76406 (ON LAT) at paras 39 and 40.
7. 72019 CanLII 43884 (ON LAT) at para. 34. (“D.O.”)