Citation: Fluter v. Co-operators General Insurance Company, 2022 ONLAT 20-008192/AABS

Licence Appeal Tribunal File Number: 20-008192/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:

Benjamin Fluter

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Benjamin Fluter, Applicant

Jacob S. W. Aitcheson, Counsel

For the Respondent:

Amanda Lennox, Counsel

HEARD: In Writing

BACKGROUND

1Benjamin Fluter, (“the Applicant”), was involved in an automobile accident on July 20, 2018, and sought benefits from Co-operators General Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016).

2The Respondent determined that the Applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).¹ It denied the Applicant entitlement to the disputed treatment plan on this basis. As a result, the Applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

3The issues to be decided in the hearing are:

a. Are the Applicant’s injuries predominantly minor and defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 funding limit and the Minor Injury Guideline?

b. Is the Applicant entitled to $1,940.12 for other goods and services recommended by Functional Rehab Services in a treatment plan dated April 8, 2020?

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

RESULT

4I find that the Applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG.

5An analysis of whether the disputed treatment and assessment plan is reasonable and necessary is not required because the Applicant has exhausted the funding available to him pursuant to the MIG.

OVERVIEW

6The Applicant was the driver of a vehicle which was struck from behind while slowing down in heavy traffic in an urban area. He sought no medical attention at the scene, nor within two months of the accident.

7The Applicant submits that he experienced pain in the neck and back and an exacerbation of his pre-existing back pain. He submits that he self-treated his injuries with daily self-massage via machine and his wife, stretching, yoga, pacing, and repositioning himself during periods of prolonged sitting or standing.

8The Applicant’s first post-accident visit to any healthcare provider occurred on October 2, 2018, when he met with a massage therapist and complained that the accident in July aggravated his pre-existing neck and back pain. Massage therapy treatment was administered, and the Applicant sought no further medical attention for accident-related injures until June 5, 2019. Then the Applicant met with D. C. Leis, chiropractor. During that visit, the Applicant mentioned that he was involved in an accident in July 2018 and that he has had more pain since then. He returned to Dr. Leis for treatments again on June 14, 28, July 31, August 9, 16, and September 6, 2019.

9The Applicant then sought occupational therapy services from Functionability Rehabilitation Services (“Functionability”). He submitted treatment and assessment plans for an in-home assessment and occupational therapy intervention, dated March 10, 2020, and May 13, 2020, respectively. The Respondent denied funding for the in-home assessment and part of the occupational therapy intervention. Notably, no clinical notes and records, (“CNRs”), from Functionability are before me for this hearing.

10There is no record that demonstrates the Applicant sought treatment following the visits to Dr. Leis, until August 25, 2020, when the Applicant met with Dr. M. Fluter, chiropractor, who also happens to be the Applicant’s brother. Intake forms from that visit note that the Applicant reported pre-existing low back pain and mild scoliosis. The Applicant attended at Dr. Fluter’s clinic for primarily physiotherapy treatment, but also some chiropractic and massage therapy, during visits on September 3, 17, October 8, 29, November 6, 25, and December 16, 2020.

11The Applicant seeks a finding that his accident-related injuries are not a minor injury and that he is entitled to the disputed occupational therapy treatment plan.

MINOR INJURY GUIDELINE (“the MIG”)

12The 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. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude his recovery if subject to the MIG.

13If an insurer deems an Applicant’s injuries to be minor in nature, the onus is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

14The Applicant submits that his pre-existing scoliosis should remove him from the MIG and the $3,500.00 funding limit on treatment.

15I find that the Applicant’s injuries are rightfully characterized as a minor injury and that his pre-existing scoliosis does not preclude his recovery if subject to the MIG.

Pre-Existing Condition

16I find that the Applicant has not met his onus to show compelling evidence of a documented pre-existing condition which would preclude his recovery if subject to the MIG.

17The Applicant was diagnosed with mild scoliosis as a teenager, he is now 39 years old. Prior to the accident, the Applicant would seek “maintenance” treatments on an irregular and as-needed basis to address back and shoulder pain. For perspective, the Applicant sought treatment approximately 10 times in the two years leading up to the accident and approximately 15 times in the two-and-a-half years after the accident. He submits that he works long hours as the founder of a tech start-up and that his schedule does not accommodate regular treatment.

18The Applicant’s injuries are properly characterized as a minor injury. The police report noted that the Applicant sustained minor injuries. The minor injuries described by the Applicant and a police witness statement notes he hit his head on the headrest and momentarily “blurred out” immediately following the accident, but before pulling the vehicle to the side of the road. There is no mention of any pre-existing injuries in this report. The Applicant’s report of “blurring out” is not evidence of an injury which is not included in the minor injury definition.

19The injuries reported during the massage therapy visit are minor injuries and do not refer to pre-existing scoliosis. The October 2, 2018 entry notes that the Applicant reported an aggravation of neck and back pain with some pain completing activities of daily living. There is no mention of a prolonged or delayed recovery on account of the Applicant’s pre-existing scoliosis. In fact, scoliosis is not mentioned in the entry for that visit. Similarly, there is no mention of scoliosis or any indication of a prolonged recovery from accident-related injuries in the CNRs from Dr. Leis. Unspecified back pain, or an aggravation of back pain, are predominantly soft-tissue injuries that are subject to the MIG.

20There are no medical records contemporaneous with the accident to identify any injuries that fall outside the minor injury definition. The Applicant never sought attention from his physician for accident-related injuries for more than a year after the accident. While I appreciate that Dr. Fluter noted that the Applicant has chronic pain in his lower back, I find that it is unpersuasive. A single note of chronic pain in the low back, made by a chiropractor more than two years following the accident, is not evidence of an injury that falls outside the minor injury definition or that the Applicant is unable to recover form his accident-related injuries if subject to the MIG. In the absence of any other medical evidence, I find that Dr. Fluter is unqualified to diagnose chronic pain or chronic pain conditions and rendered his opinion more than two years following the accident.

21Lastly, the Applicant never disclosed the accident, or any accident-related injuries to his family physician, Dr. W. McTavish. While the Applicant is not required to report the accident to his family physician, the absence of any notation of it indicates that the injury was minor. The Applicant met with Dr. McTavish several times for an issue that was unrelated to the accident yet, there is no mention of the accident or any accident-related injuries in Dr. McTavish’s CNRs.

22Considering the evidence, I find that the Applicant’s pre-existing mild scoliosis has no measurable impact on his recovery from his accident-related injuries.

INTEREST

23Interest may be payable pursuant to section 51 of the Schedule if any payment of benefits is overdue. The Applicant is not entitled to interest as no benefits went overdue.

CONCLUSION and ORDER

24The Applicant sustained a minor injury as a result of the accident. He has not met his burden to prove that his pre-existing scoliosis prolonged his recovery from his minor injury. Thus, the Applicant is rightfully subject to the MIG and the $3,500.00 funding limit on treatment.

25An analysis of the disputed treatment and assessment plan is not required as the Applicant has exhausted the funding available to him for treatment of his minor injury.

26No interest is payable as no payments went overdue.

27The application is dismissed.

Released: May 27, 2022