Licence Appeal Tribunal File Number: 21-003936/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:
Judiane Mariathason
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
April Snow, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Judaine Mariathason, the applicant, was involved in an automobile accident on June 17, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
ii. Is the applicant entitled to physiotherapy in the amount of $3,498.35 proposed by Alexmuir Wellness Centre in a treatment plan dated July 11, 2019?
iii. Is the applicant entitled to physiotherapy in the amount of $2,677.17 proposed by Alexmuir Wellness Centre in a treatment plan dated October 20, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated on a balance of probabilities that he is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline.
4The applicant is not entitled to either of the treatment plans in dispute.
5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
Applicability of the Minor Injury Guideline
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.”
7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that “his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline”. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant submits that his pre-existing medical conditions would prevent maximal recovery if he were kept within the limits of the MIG. He also submits that he should not be subjected to the MIG as a result of the injuries he sustained in the accident. The respondent submits that there is no medical evidence to support the applicant’s arguments.
Does the applicant have a pre-existing injury or condition such that recovery would be precluded if he was kept within the MIG?
9I find for the reasons that follow that the applicant did not demonstrate, on a balance of probabilities, that his pre-existing conditions preclude recovery if he is kept within the confines of the MIG.
10The evidence is clear that the applicant had pre-existing psychological conditions that were being treated by various medical practitioners, including his family physician, Dr. Chacko, and a psychiatrist, Dr. Mazzei. Prior to the accident, the applicant was suffering from anxiety and depression. He had difficulties with substance use. He was taking medication to control his psychological symptoms. He had also been assaulted in 2017 when he was hit on the head with a metal bat, although it is not clear whether at the time of the accident he was suffering from any medical conditions as a result of that assault. Having pre-existing conditions is not enough to remove the applicant from the MIG. The applicant must provide compelling evidence that his pre-existing conditions will prevent him from achieving maximal recovery under the MIG.
11The applicant argues that Dr. Chacko’s note dated December 11, 2018, states that he had increased his alcohol intake to assist with pain. However, the medical note from that date does not indicate that he was drinking alcohol because of pain. It simply states: “has been drinking alcohol few month [sic]”. The only reference to pain in that record was that the applicant had “slight pain in upper and lower back”. The rest of the record notes difficulties with the police, and a fear of going to jail. The accident is not mentioned. The reason for his alcohol use is not mentioned. The note from June 14, 2018, just prior to the accident, also mentions alcohol use. There is no evidence that his alcohol use impeded his ability to recover from the injuries he sustained in the accident, and there is no evidence that his alcohol use increased as a result of the accident.
12The respondent submits that no qualified medical practitioner has opined that the applicant’s pre-existing mental health issues would affect his recovery if he were kept within the MIG, or that his pre-existing issues were exacerbated by the accident. I agree. At no point in the medical records is there a reference to the applicant’s pre-accident psychological condition (or any other condition) having an impact on his recovery. Any treatment received by the applicant and complaints made to his family physician as a result of the accident were for strictly physical conditions. The progress note from Dr. Mazzei on August 2, 2018 — the only post-accident progress note from Dr. Mazzei in evidence — did not mention the accident at all. The applicant was able to attend physiotherapy and chiropractic treatments, and was able to return to work, at one point working two jobs. In October 2019 at his annual physical, his musculoskeletal system and his mental health were noted as normal.
13Further, the applicant underwent a s. 44 assessment with Dr. Frank Loritz, general practitioner, on July 26, 2021. Dr. Loritz opined that there was no evidence of a pre-existing medical condition that would prevent the applicant from achieving maximum medical recovery if limited to the financial cap under the MIG. In his submissions, the applicant did not raise any objections with Dr. Loritz’s assessment or conclusions.
14For these reasons, the applicant has not met his burden of proving that his recovery from accident-related impairments was impacted by any pre-existing conditions such that the MIG should not apply.
Did the applicant sustain predominantly minor injuries in the accident?
15The applicant states that he has sustained “physical, psychological, neurological, and chronic pain” injuries in the accident. He argues that he “deserves to be considered for future treatment in terms of psychological, physical and chronic pain.” He argues that he “deserves some counselling in the future to cope with his mental illness.” I have reviewed the entire evidentiary record and determined that the applicant’s injuries are predominantly minor such that the MIG applies.
16The applicant first sought medical assistance at The Scarborough Hospital on the date of the accident. The applicant claims that he was assessed for headaches, chest pain, nausea, and phobia at the hospital, a CT scan was performed, and he was provided with Advil for his pain. However, there is no medical record in evidence from that date that shows this. The only record before me from The Scarborough Hospital from that date is the discharge note, which states the sole diagnosis as “back pain”. The respondent points out, and it appears to be the case, that the reference to headaches, chest pain, nausea, and phobia was from an unrelated visit on September 8, 2018, where the accident is not mentioned.
17The day after the accident, the applicant visited Dr. Chacko and reported that he had neck, left shoulder, mid back, and lower back pain, with numbness in his back. His range of motion was full, but with pain. Dr. Chacko referred the applicant to physiotherapy and prescribed Naproxen. The applicant saw Dr. Chacko again on August 27, 2018, and complained of pain in his neck and back, and numbness in his leg. He told Dr. Chacko that he was going for physiotherapy three times per week, he was not able to do deliveries, and he had difficulty with laundry.
18The next reference to pain in Dr. Chacko’s records is from December 11, 2018, when the applicant was experiencing “slight pain” in his upper and lower back. The visits to his family physician became more sporadic after that, and at his physical on October 28, 2019, his musculoskeletal system appeared to be normal. The only other reference to pain in his neck, shoulders, or back was at his annual physical on November 24, 2021, where it is noted that he had “tenderness in left supraspinatus and left intrathoracic and lumbar area”. He was not referred for further therapy or provided with pain medication during that visit.
19There are no formal diagnoses in the medical records for the applicant’s physical injuries. There is no evidence that his injuries go beyond “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation” or any sequelae of those injuries as indicated in the MIG.
20In his report, Dr. Loritz noted that the applicant reported low back pain and neck pain. His low back pain symptoms were improving. His neck pain was intermittent with movements or exertion, but not while at rest. He did not have restrictions in the range of motion of his neck or shoulders. He was independent with respect to his self-care, and he assisted his mother with housekeeping tasks. Dr. Loritz’s opinion was that the applicant sustained myofascial sprain/strain injuries of his cervical spine (whiplash WAD I/II) and axial spine as a result of the accident. His opinion was that the applicant’s injuries met the criteria of a minor injury as defined in the Schedule. The applicant has not put forward any evidence to contradict these diagnoses.
21Further, there is no evidence that the applicant suffers from chronic pain as a result of this accident. There has been no diagnosis of chronic pain from a medical practitioner, and there is no indication as to how any accident-related pain the applicant may be experiencing impedes his functioning. His pain appears to be transient and only slight at times. Even if it was his pain that limited him from working as a delivery driver for approximately one year after the accident, he was able to return to work in 2019. As Dr. Loritz indicated, the applicant is independent in his self-care and is able to assist his mother with housekeeping tasks.
22The applicant also argues that he sustained a neurological injury in the accident. It is not clear what neurological injury he is referring to specifically. He had some numbness in his back and leg within a few months after the accident, but never complained to Dr. Chacko about those issues again, and there is no evidence of a neurological diagnosis, let alone one stemming from the accident. He also suffered from headaches sporadically after the accident, however he also suffered from similar headaches prior to the accident. He did not complain about headaches after the accident until September 2, 2018. A note from September 23, 2019 indicates that he was not suffering from headaches. Headaches were not mentioned again until April 8, 2020, and then a final time on February 16, 2022. At no point were these headaches attributed to the accident by a medical practitioner. There is no evidence that the applicant sustained a head injury in the accident.
23There is also no evidence that the applicant sustained a separate psychological injury as a result of this accident. He had a significant pre-accident psychological history. No medical practitioner has stated that any changes to his psychological condition were as a result of the accident, nor do the medical records bear this out. Although the applicant states that he “deserves some counselling in the future to cope with his mental illness”, he does not explain what mental illnesses he is suffering from as a result of the accident. The respondent notes that no psychological treatment plans have ever been submitted.
24The applicant states that on December 11, 2018, he was diagnosed with “anxiety, neurosis, hysteria, neurasthenia, obsessive compulsive neurosis, and reactive depression.” However, this is the exact same diagnosis that he had prior to the accident, which was also noted in the records on August 22, 2017, February 27, 2018, March 9, 2018, March 21, 2018, March 28, 2018, May 14, 2018, and June 14, 2018. The applicant also points to psychological diagnoses and symptoms from a depression assessment on September 23, 2019. The applicant fails to mention that the same assessment was completed on August 22, 2017 (prior to the accident). The results were almost identical, except on the later date the note indicates that he was no longer suicidal, and his concentration was better. If anything, it appears his mental health improved after the accident.
25For these reasons, I find that the applicant has not met his burden in proving that he sustained injuries that fall outside the MIG.
Are the treatment plans in dispute reasonable and necessary?
26It appears that the applicant has exhausted his limits under the MIG. Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.
ORDER
28The applicant is not entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline.
29The applicant is not entitled to either of the treatment plans in dispute.
30Given that there are no benefits owed, the applicant is not entitled to interest.
Released: May 12, 2023
Rachel Levitsky
Adjudicator```