Citation: Balcita v. Aviva General Insurance Company, 2022 ONLAT 20-004917/AABS

Licence Appeal Tribunal File Number: 20-004917/AABS

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:

Viola Balcita

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Justin Mariani, Paralegal

For the Respondent:

Kimberley Tye, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Viola Balcita (“V.B.”) was injured in an automobile accident on March 4, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). Aviva denied the disputed benefits on the basis that it determined that V.B. suffered predominantly minor injuries as a result of the accident, and thereby subject to the limits set out in the Minor Injury Guideline (the “MIG”). V.B. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2The issues to be decided are as follows:

a. Are V.B.’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 medical benefit in the amount of $3,787.10 for physiotherapy, recommended by Green Wellness and Rehabilitation Centre in a treatment plan (OCF-18) denied February 5, 2019, reasonable and necessary?

c. Is the medical benefit in the amount of $2,316.00 for physiotherapy, recommended by Medex Health Services in an OCF-18 denied April 26, 2018, reasonable and necessary?

d. Is the medical benefit in the amount of $2,316.00 for physiotherapy, recommended by Medex Health Services in an OCF-18 denied May 8, 2018, reasonable and necessary?

e. Is the cost of examination expense in the amount of $2,634.02 for a psychological assessment, recommended by Elite Specialist Group Inc. in an OCF-18 denied May 29, 2019, reasonable and necessary?

f. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to V.B.?

g. Is V.B. entitled to interest on any overdue payment of benefits?

FINDING

3V.B. has failed to demonstrate that her injuries and impairments warrant treatment beyond the MIG. Accordingly, the disputed treatment plans are not reasonable and necessary, and no interest is payable.

4No award is payable.

ANALYSIS

Did V.B. suffer predominantly minor injuries?

5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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 person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG.

6The applicant bears the onus to establish entitlement to coverage beyond the $3500.00 limit for minor injuries on a balance of probabilities.

7V.B. submits that the impairments she sustained as a result of the accident warrant treatment beyond the MIG due to the ongoing impact on her daily activities and employment. For the reasons that follow, I find that V.B. has not established that her accident-related impairments warrant treatment beyond the MIG.

8In support of her claims, V.B. relies on the clinical notes and records of Dr. Krulewitz, family physician, (who noted right shoulder pain and diagnosed acute traumatic stress disorder), the records of MedEx Health Services (injuries were noted as WAD2, sprain and strain of thoracic spine, sprain and strain of lumbar spine), the psychological report of Dr. Shaul (noting adjustment disorder), and an orthopaedic report of Dr. Getahun (diagnosing myofascial strain of the cervical/thoracic spines, and right shoulder strain).

9In response, Aviva argues that V.B.’s injuries are soft-tissue in nature and fall within the definition of minor injuries under the Schedule. Aviva relies on the results of two s. 44 insurer examination (“IE”) reports: a May 4, 2018, report from Dr. Corrin, general physician, diagnosing V.B. with a “soft tissue injury of the right shoulder” and a May 29, 2019, report from Dr. Marino, psychologist, who concludes that “the applicant does not present with any psychological impairment or diagnosis.”

10I agree with Aviva. On the evidence, I find the injuries listed in the treatment plans and other medical documentation consistently indicate that V.B.’s injuries are captured within the definition of predominantly ‘minor’. The Minor Injury Discharge report, prepared by chiropractor Dr. Duong, does not assist in suggesting that V.B.’s alleged injuries and pain are severe enough to warrant treatment outside of the MIG. Dr. Duong notes the injuries as WAD2, sprain and strain of the thoracic spine and sprain and strain of the lumbar spine. I find these physical injuries fall squarely within the category of minor injuries as the medical evidence fails to distinguish that these injuries are somehow atypical of sprain and strain injuries. The predominantly minor nature of V.B.’s impairments are confirmed in the records of Green Wellness and Rehabilitation. In addition, the CNRs of the family physician specifically, are largely silent on any ongoing accident-related pain complaints.

11Regarding any psychological impairments, while the Minor Injury Discharge report notes post-traumatic stress/anxiety, I find this diagnosis is beyond the scope of expertise of a chiropractor. In addition, V.B. was referred to psychologist Dr. Shaul by her legal representative. Further, she reported to the s. 44 assessor, psychologist Dr. Marino, that she was not interested in any psychological treatment, stating “I am doing fine.” She indicated that she was unaware that a treatment plan was being submitted on her behalf for a psychological assessment. In summary, there is no evidence of any clinically significant psychological impairment required to warrant treatment beyond the MIG limit.

12On a balance of probabilities, I find that V.B. sustained predominantly minor injuries that do not require removal from or treatment beyond the MIG. I also note that the MIG limits have been exhausted. Consequently, as V.B.’s injuries are treatable within the MIG, it is unnecessary to consider the disputed treatment plans.

AWARD

13As no benefits are payable, Aviva cannot be found to have unreasonably withheld or delayed payment of benefits. As such, no award is payable.

CONCLUSION

14V.B. has not demonstrated that she sustained impairments as a result of the accident that justify removal from the MIG. As V.B.’s injuries are predominantly minor injuries, an analysis of the disputed treatment plans is not required. As no benefits are overdue, no interest is payable.

15Aviva has not unreasonably withheld or delayed payment of benefits, therefore no award is payable.

Footnotes

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