McPherson v. Aviva General Insurance

Citation: McPherson v. Aviva General Insurance, 2023 ONLAT 21-005865/AABS

Licence Appeal Tribunal File Number: 21-005865/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:

Lushane McPherson

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Ilan Liebner, Counsel

For the Respondent: Yann Grand - Clement, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Lushane McPherson, the applicant, was involved in an automobile accident on April 23, 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 as follows:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the $3,500.00 limit in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to the assessments proposed by Mackenzie Medical Rehabilitation Centre, as follows:

1. $2,569.40 for physiotherapy services, in a treatment plan submitted on May 16, 2019?
2. $2,510.20 for physiotherapy services, in a plan, submitted on July 19, 2019?
3. $2,115.30 for physiotherapy services, in a plan, submitted on September 9, 2019?
4. $2,569.40 for physiotherapy services, in a plan, submitted on November 19, 2019?

iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not proven that their injuries are anything beyond minor injuries as defined in the Schedule and are therefore subject to the MIG.

4No benefits, award or interest are payable.

ANALYSIS

The applicant has not proven any injuries or impairments beyond the minor injury guideline.

5Section 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."

6An insured 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 they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. 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.

7The applicant saw their family doctor, Dr. A Cohen, on April 24, 2018, the day after the accident. Dr. Cohen diagnosed the applicant with soft tissue injuries to the neck, left pec minor and left trapezius. The applicant then saw Dr. Cohen again, on May 3, 2018, presenting with full body soreness. These are minor injuries under the Schedule. Dr. Cohen also notes fibromyalgia, which I will discuss further below.

8The clinical notes of Dr. Cohen provide evidence of three prior visits, in August and December of 2015 and in June of 2017. None of the visit notes provide any indication that the applicant was suffering from a pre-existing condition that would satisfy the requirements for removal from the MIG under s. 18(2).

9The applicant submits that they should be removed MIG based on a Fibromyalgia diagnosis and chronic pain syndrome.

10There has been no evidence submitted before the Tribunal signifying any s. 25 or s. 44 examinations. Nor have there been any clinical notes and records of any specialists or other treating physicians. Clinical notes and records have been provided by Dr. P. Porco, the applicant's chiropractor, however these notes do not contain any evidence of injuries that would fall outside of the MIG, as they are sprain and strain injuries.

11The clinical notes and records provided by Dr. Cohen show one following visit referencing pain from the accident on May 12, 2019, over a year following the accident. This record is immediately following the record of May 3, 2018, leading me to the conclusion that the applicant had not seen Dr. Cohen in the year following the May 3, 2018 visit.

12The respondent submits that the applicant has not provided sufficient evidence to meet their burden of proof. I agree with the respondent.

13The applicant did not have any subsequent visits with Dr. Cohen in the year following the Fibromyalgia diagnosis on May 3, 2018, was not referred to a specialist, did not undergo any further testing or assessments, and did not seek any further treatment for fibromyalgia. Dr. Cohen did not link the diagnosis of fibromyalgia to the accident, nor were his initial 15-day prescriptions renewed in the year following the accident to lend support for meeting the s. 18(2) criteria. The applicant also saw Dr. Cohen three more times during 2019 and neither injuries from the accident, nor Fibromyalgia, were discussed. Given these reasons, I give limited weight to Dr. Cohen's diagnosis of Fibromyalgia as an accident-related or exacerbated impairment that would justify removal from the MIG or, critically, as a pre-existing condition that would prevent the applicant's recovery under the MIG pursuant to s. 18(2) for their soft tissue injuries.

14The applicant relies on the Tribunal case Casavant v. Belair, 2022 CanLII 75152 (ONLAT) in support of their position. In Casavant, the Tribunal found that applicant suffered from a documented pre-existing condition as outlined in s. 18(2), Fibromyalgia, which warranted removal from the MIG. However, this case is distinguishable from Casavant. In Casavant, the applicant was diagnosed with Fibromyalgia prior to the accident and provided compelling evidence to demonstrate that the condition would prevent their maximal recovery from their accident-related impairments if they are kept within the MIG, as required by s. 18(2). In this case, the diagnosis of Fibromyalgia was made after the accident, with no evidence submitted of the applicant presenting with Fibromyalgia related symptoms prior to the accident.

15The evidence provided to the Tribunal to support removal from the MIG was limited. As such, I find that the applicant has not met their burden of proof to show, on the balance of probabilities, that they suffer from an injury that is not predominantly minor as defined by the Schedule or that they suffer from a pre-existing condition that will prevent their recovery if they are kept within the MIG.

The applicant is not entitled to any disputed treatment plans

16The Case Conference Report and Order dated August 5, 2022 notes that both parties agree the MIG limits have been exhausted.

17However, a claim statement submitted by the respondent dated April 28, 2020 notes that there is $611.55 remaining under the policy.

18The second pages of the May 16, 2019, July 19, 2019, September 9, 2019 and November 19, 2019 OCF-18s indicate that each of these treatment plans propose treatment outside the MIG framework. While the applicant has funds remaining in the MIG, I have found that the applicant is not entitled to treatment beyond the MIG framework, and therefore, analysis of whether the May 16, 2019, July 19, 2019, September 9, 2019 and November 19, 2019 treatment plans are reasonable and necessary is not required.

No interest is payable

19As there are no benefits owing, no interest is payable.

No award is payable

20As I have found in that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

ORDER

21For the reasons above I find that:

i. The applicant sustained predominantly minor injuries as defined under the Schedule and is therefore subject to the MIG.

ii. The applicant is not entitled to:

i. Any disputed treatment plans;

ii. Interest;

iii. An award under Regulation 664; and

iii. This application is dismissed.