Licence Appeal Tribunal File Number: 21-007166/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:
Victoria Peer
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Ryan Jeffries, Paralegal
For the Respondent:
D. Dakota Forster, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Victoria Peer (the “applicant”) was involved in a motor vehicle accident on May 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In submissions, the respondent notes that $1,221.26 has been exhausted of the MIG limit of $3,500.00. This leaves $2,278.74 remaining under the MIG. The amount remaining within the MIG is not referenced in the applicant’s initial submissions, and the amount specified by the respondent is not addressed in reply submissions (the applicant did not file reply submissions at all). However, all four of the treatment plans in dispute propose treatment outside of the MIG. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to any of the treatment plans in dispute.
3I have not added an award claim to the issues in dispute, despite it being referenced in the applicant’s written submissions. The applicant’s counsel confirmed in correspondence to Aviva dated September 6, 2022 that this was included in error and that an award claim was not being pursued here.
ISSUES IN DISPUTE
4The following issues are in dispute:
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 of the MIG?
Is the applicant entitled to $2,260.00 for a driver’s integration evaluation in a treatment plan/OCF-18 recommended by Medex Assessments dated June 18, 2019?
Is the applicant entitled to $2,010.65 for life skills training in a treatment plan/OCF-18 recommended by Medex Assessments dated June 18, 2019?
Is the applicant entitled to $2,655.50 for an orthopaedic assessment in a treatment plan/OCF-18 recommended by Medex Assessments dated August 27, 2020?
Is the applicant entitled to $2,260.00 for a psychological assessment in a treatment plan/OCF-18 recommended by Medex Assessments dated June 18, 2019?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
5I find that:
i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule, and as a result she remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as the treatment plans in dispute propose treatment outside of the MIG, she is not entitled to the treatment plans in dispute, nor interest.
ANALYSIS
The Minor Injury Guideline (“MIG”)
[6]
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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 it can be established that accident-related injuries fall outside of the MIG or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
8The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside the MIG. Here, the applicant argues that she suffers from physical and psychological injuries as a direct result of the accident that are not minor injuries as defined in the Schedule. To demonstrate these claims, she relies on:
clinical notes and records (“CNRs”) of Dr. Krisanne Mendelssohn, family physician, dated May 31, 2016 to June 14, 2019;
CNRs of Dr. Tom Lu, family physician, dated July 27, 2021 to February 23, 2022;
CNRs and medical diagnostic imagining conducted at Lakeridge Health Ajax Pickering Hospital in 2020; and
the treatment plans/OCF-18s in dispute.
9The respondent’s position that the applicant has failed to demonstrate injuries that would warrant her removal from the MIG primarily relies on:
an s. 44 insurer’s examination (“IE”) report of Dr. Gilbert Yee, orthopaedic surgeon, dated December 9, 2020; and
an s. 44 IE report of Dr. Gary Challis, psychologist, dated December 14, 2020.
Has the applicant sustained injuries that warrant removal from the MIG?
10I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule as a direct result of the accident. She remains within the MIG and its $3,500.00 limit on treatment.
11In short, the applicant has submitted no medical evidence to demonstrate that she sustained anything other than minor injuries in the accident. Her family physician, Dr. Mendelssohn, diagnosed her with whiplash, shoulder injury, and myofascial neck injury at a May 14, 2019 appointment as a result of the accident, all soft-tissue injuries that fall under the minor definition in the Schedule. Dr. Mendelssohn recommended physiotherapy and advised the applicant to take Advil.
12The applicant argues that May and June 2019 CNRs of Dr. Mendelssohn note stomach pain and a possible rib dislocation as evidence of significant injury sustained in the accident, but these symptoms were connected to an entirely unrelated health issue that was diagnosed during a visit to the Lakeridge Health Ajax Pickering Hospital on May 17, 2019. The applicant did not raise other accident-related concerns to Dr. Mendelssohn until June 3, 2020, when she complained of ongoing back stiffness dating back to the accident over a year prior. Again, Dr. Mendelssohn diagnosed the same soft-tissue injuries as she did in May 2019. Subsequent spinal x-rays and an MRI conducted on June 22, 2020 and August 19, 2020, respectively, revealed only mild degenerative changes that Dr. Mendelssohn diagnosed as early-onset arthritis, a condition that she noted was unrelated to the accident.
13Dr. Mendelssohn’s CNRs also show that she demurred when asked by the applicant and her lawyers about a referral to an orthopaedic surgeon. On July 30, 2020, Dr. Mendelssohn emailed the applicant’s counsel (with the permission of the applicant) to say that such a referral should be made through the law firm, as any orthopaedic surgeons at her hospital did not do “legal work in this regard.” It seems clear that Dr. Mendelssohn did not believe that such a referral was warranted. At any rate, no evidence was submitted that the applicant was ever referred to an orthopaedic surgeon by Dr. Mendelssohn or that such an examination was arranged through her counsel.
14Through more than two years of treatment, Dr. Mendelssohn never changed her initial diagnosis that the applicant sustained soft-tissue muscular injuries in the accident. As this assessment was bolstered by medical diagnostic imaging and the applicant herself given her sporadic visits to the family doctor with accident-related complaints, I see no basis here for removing the applicant from the MIG.
15CNRs of Dr. Lu, the family physician that the applicant began seeing as of July 27, 2021, do not show any complaints related to the accident. Although the applicant alluded to a connection between the accident and her request on February 14, 2022 that Dr. Lu fill out an unpaid leave of absence form for her employer to take a year off, the physician’s CNRs indicate that this was due to stress, family issues, and recently being diagnosed with COVID-19. There is no mention of the accident at all. Moreover, Dr. Lu refused to recommend the year-long leave of absence, writing that he advised her to take four weeks off and then be reassessed. The applicant presents this as evidence of accident-caused psychological sequelae that would warrant removal from the MIG, but the evidence does not support any relationship between these life stressors and the accident of more than two years earlier.
16Additionally, I prefer the medical evidence of the respondent. These two IE reports are the most comprehensive medical evidence before me, consisting of thorough clinical interviews, testing, and diagnoses. The physician authors of the reports conclude that the applicant can and should be treated within the MIG. In his orthopaedic surgery assessment report, Dr. Yee found that the applicant experienced myofascial spinal strain injuries that were predominantly minor in nature and that she could reach maximal medical recovery within the MIG. Dr. Challis arrived at similar conclusions in his psychology assessment report, finding that the applicant did not present any diagnosable psychological issues as a result of the accident.
17For the reasons above, I find that the applicant has not demonstrated that she suffers from injuries that warrant her removal from the MIG.
The Treatment Plans
18As the applicant has been found to remain within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, it follows that she is not entitled to these plans, nor interest.
ORDER
19The application is dismissed and I find that:
i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG and the treatment plans in dispute propose treatment outside of the MIG, she is not entitled to these plans, or interest.
Released: June 28, 2023
Brett Todd
Vice-Chair