Vu v. Aviva Insurance Company, 2022 CanLII 11158

Licence Appeal Tribunal

Citation: Vu v. Aviva Insurance Company, 2021 ONLAT 20-002862/AABS

Licence Appeal Tribunal File Number: 20-002862/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Loc Dinh Vu

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Asad Ali Moten

APPEARANCES:

For the Applicant:

Michael Krylov, Counsel

For the Respondent:

Evan Argentino, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant (the "Applicant") was involved in an automobile accident on December 19, 2017. He seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").

2At issue between the parties are the Applicant's claims for various medical benefits. The Applicant's claims to the insurer were denied on the basis that his injuries fell within the Minor Injury Guidelines ("MIG"),¹ and he now appeals to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the "Tribunal") for resolution of these claims.

3The Applicant argues that he is not subject to the MIG because (a) his pre-existing injuries prevent him from achieving maximal recovery within the MIG amounts; and (b) he suffers from chronic pain. The Applicant further argues that his proposed treatment plans are reasonable and necessary.

4The respondent insurer, Aviva General Insurance Company (the "Respondent"), disagrees. It argues that the Applicant has not demonstrated that he falls outside of the MIG, and further and in the alternative, that his proposed treatment plans are not reasonable and necessary.

ISSUES

5The issues to be decided are:

a. 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 MIG?

b. Is the Applicant entitled to physiotherapy treatment recommended by North Toronto Physiotherapy and Rehabilitation in a treatment plan (OCF-18) in the amount of:

i. $3,492.70, approved in the amount of $2,200.00, submitted January 24, 2018 and denied on March 23, 2018?

ii. $1,969.10 submitted March 2, 2018 and denied on April 20, 2018?

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

RESULT

6I find that, for the reasons below, the Applicant has not met his onus to establish on a balance of probabilities that his injuries fall outside of the MIG. I find that the Applicant has suffered predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The proposed treatment plans were rejected because the Applicant reached the MIG limit for medical benefits. The Applicant is not entitled to the claimed benefits or any interest thereon.

BACKGROUND

7The Applicant was involved in a car accident on December 19, 2017. He was 45 years old at the time of the collision. On the day of the collision, the Applicant was driving northbound on Midland Avenue. Travelling through the intersection the Applicant collided with a left-turning car.

8The same day as the collision, the Applicant went to see his family doctor. He told his doctor about the collision, and complained of mild cervical pain. The Applicant did not report losing consciousness.

9The family physician's notes indicate mild pain on bilateral palpitation of the Applicant's neck, and possible slight scoliosis in his back.

10The Applicant has some relevant medical history from before the collision. His physician's notes from February 29, 2016 indicate a diagnostic code: "724 – Lumbar strain, lumbago, coccydynia, sciatica". There is no other legible indication from that date as to the exact nature of his injury. In June 2017, the Applicant returned to his doctor, complaining of "...mild lower back pain from time to time..." The same diagnostic code was noted.

11Beyond the above-noted entries there is nothing in the Applicant's physician's notes to indicate back pain.

12Beginning in December 2017, the Applicant began attending physiotherapy and massage therapy for his injuries arising from the collision. He continued receiving these services several times a week until at least April 2018.

ANALYSIS

A. Has the Applicant sustained predominantly minor injuries under the Schedule?

13I find that the Applicant has not satisfied his onus to demonstrate that he has suffered injuries that warrant his removal from the MIG.

14The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule defines a minor injury as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation. A minor injury also includes any clinically associated sequelae to the injuries noted above. An applicant who falls within the MIG is eligible for up to $3,500 in medical and rehabilitation benefits.

15There are at least two ways that an applicant can be taken out of the MIG. First, if the applicant suffers an injury in the accident that goes beyond the definition of a minor injury. Commonly, the Tribunal hears disputes about an whether an applicant's chronic pain or psychological conditions suffered as a result of the accident are sufficient to remove an applicant from the MIG. Second, section 18(2) of the Schedule provides that an applicant can fall outside of the MIG if his or her health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition which prevents maximal recovery of an otherwise minor injury if the applicant is limited to the benefits under the MIG.

16The Applicant bears the burden of proving, on a balance of probabilities, that the MIG does not apply.²

17In this case, the Applicant argues that he has a pre-existing injury that prevents his maximal recovery. He also argues, in the alternative, that he suffers from chronic pain as a result of the accident.

(i) The Applicant's pre-existing injury

18The law requires the Applicant to demonstrate (a) compelling and objective evidence that the Applicant has a pre-existing condition which (b) prevents maximal recovery from an otherwise minor injury. The Applicant has not demonstrated (a) or (b).

19The only evidence the Applicant has put forward are the Applicant's physician's notes. The Respondent argues that evidence of a pre-existing condition is not sufficient to warrant removal from the MIG. I disagree. Medical evidence indicating a pre-existing condition, such as a physician's notes, can in obvious cases be sufficiently objective and compelling. But this is not one of those cases. The physician's notes contain two instances of back issues. The first contains only a diagnostic code, and the second states that the Applicant experiences mild back pain from time to time. While objective, this evidence is not compelling; there is insufficient evidence to describe how the back pain affects the applicant, or limits him in any way that may be connected to his ability to recover under the MIG from a subsequent collision.

20Even if there was compelling evidence with respect to the Applicant's back issues, there is nothing, beyond the Applicant's submissions, to suggest how the Applicant's other pre-existing conditions, including Hepatitis B, prevent him from achieving maximal recovery under the MIG. The Applicant has not provided any evidence about how his mild back pain or his Hepatitis B might impede his recovery.

(ii) The Applicant's chronic pain

21The Applicant argues that he now suffers from chronic pain as a result of the collision. The evidence he puts forward in support of this argument are the notes from the rehabilitation centre he attended. There, he received, among other modalities, physiotherapy and massage therapy. The notes do indicate that the Applicant continues to suffer pain. They fall short, however, of demonstrating that the Applicant's chronic pain warrants his removal from the MIG in at least two ways.

22First, this Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take an applicant out of the MIG.³ While an explicit diagnosis may not be necessary in the face of adequate evidence with respect to how chronic pain manifests and affects an applicant's day-to-day life, the notes from the Applicant's rehabilitation centre do not adequately speak to this.

23Second, the Respondent argues that the Applicant has not demonstrated at least three of the six indicia of a chronic pain diagnosis that the American Medical Association has identified and that this Tribunal has adopted.⁴ I agree. These indicia include:

a. Prescription medication for chronic pain;

b. Excessive dependence on health care providers or other supports;

c. Secondary physical deconditioning and/or fear avoidance of physical activity;

d. Withdrawal from social milieu;

e. Failure to restore pre-injury function after a period of disability;

f. Development of psychosocial sequelae after the initial accident.

24On the most generous reading of the Applicant's evidence, there is only a failure to restore pre-injury function after a period of disability. Far from the required three indicia to evidence a diagnosis of chronic pain.

25Lastly, the Applicant's post-accident evidence comes from a very short time period. All of it is between the date of the collision and late April 2018. In other words, approximately four months. This is hardly enough time within which to establish a diagnosis of chronic pain to warrant removal from the MIG.

26I therefore find that the Applicant has suffered predominantly minor injuries under the Schedule, and is subject to the MIG.

B. Is the Applicant entitled to payment of the proposed treatment plans?

27Having found that the Applicant has suffered predominantly minor injuries, I need not consider whether the Applicant is entitled to payment of the proposed treatment plans. The treatment plans were refused because the Applicant had exceeded the $3,500.00 limit under the MIG.

C. Is the Applicant entitled to interest on the claimed benefits?

28In light of my findings above, I conclude that the Applicant is not entitled to any interest payments.

ORDER

29For the reasons above, I find that the Applicant has not met his onus to establish on a balance of probabilities that his injuries fall outside of the MIG. The Applicant's application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued under s.268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair Insurance (Appeal P13-0014, November 28, 2013), para. 42.
3. 317-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142
4. 417-003597 v. Aviva Insurance Canada, 2018 CanLII 76440 (ON LAT), at para. 6.