Philip v. Aviva Insurance Company, 2024 CanLII 41004
Licence Appeal Tribunal File Number: 21-009059/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:
Fletcher Philip
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Rebbecca Phillips, Counsel
For the Respondent: Marcin Panasewicz, Counsel
HEARD: By way of written submissions
OVERVIEW
1Fletcher Philip the applicant, was involved in two automobile accidents on May 10, 2019 and August 27, 2019, 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 Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute pertaining to the May 10, 2019 accident 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 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,591.50 for physiotherapy services, proposed by Mohammed Bakri in a treatment plan/OCF-18 (“plan”) dated January 4, 2021 and denied April 12, 2021?
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?
3The issues in dispute pertaining to the August 27, 2019 accident 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 Minor Injury Guideline limit (“MIG”)? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $71.81 ($1,700.00 less $1,628.19 approved) for physiotherapy services, proposed by Physio Art Rehab in a plan dated June 16, 2020 and denied June 26, 2020?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Psychology Health Solutions in a plan dated October 22, 2019 and denied November 7, 2019?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not proven injuries which warrant removal from the MIG.
5There is no entitlement to additional benefits. The application is dismissed.
ANALYSIS
The applicant’s injuries sustained in both accidents fall within the MIG
6An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1) of the Schedule. 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.” The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.
7In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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 applicant’s physical injuries sustained in the May 10, 2019 accident fall within the MIG
8The applicant submits that he should be removed from the MIG as the physical injuries sustained in the accident fall outside of the definition of minor injury in the Schedule. I am not satisfied that this is the case.
9The radiology evidence relied on by the applicant bears no causal connection to the accident, according to Dr. F. Salehi. Instead, the applicant's spinal cord compression and signal abnormality are described in the evidence before me as degenerative in nature.
10The neurological evidence relied by the applicant bears no causal connection to the accident according to Dr. B. Wang. Dr. Wang notes the applicant did not seek medical attention following the May 10, 2019 accident and felt fine. The applicant’s symptoms first presented themselves in August 2019 when he attempted to lift his granddaughter. Dr. Wang noted that the applicant is not a surgical candidate at this time and recommended the applicant maintain an active lifestyle with a mild to moderate exercise regimen. Dr. Wang did not attribute the diagnosis to an injury sustained in either accident.
11The respondent submits that there has been no evidence provided that links the injuries referenced in the MRI report and surgical consultation to either accident. They further submit a s. 44 report of Dr. J. Auguste, orthopaedic surgeon. Dr. Auguste assessed the applicant on March 22, 2021 and concluded that the injuries described in the MRI and subsequent neurosurgical consultation were not linked to either accident.
12I agree with the respondent’s position. There has been no causal link shown between the May 10, 2019 accident and the findings in the MRI. The applicant’s statements in his assessment with Dr. Wang were that he felt fine following the accident and did not seek medical attention. The first complaint of impairment materialized when he tried to lift his grandchild in August 2019, three months after the accident, and was unable to do so. There has been no further evidence adduced that would link this impairment to the May 10, 2019 accident.
13I find that the applicant has not proven, on a balance of probabilities, that his physical injuries sustained in the May 10, 2019 accident fall outside the MIG.
The applicant’s physical injuries sustained in the August 27, 2019 accident fall within the MIG
14The applicant submits that they should be removed from the MIG on the basis of a pre-existing condition that was sustained in the May 10, 2019 accident.
15In support of this, the applicant points to a progress note signed by Ms. R. Padilla, a physiotherapist’s assistant. Ms. Padilla notes the objective symptoms presented by the applicant, her clinical impression and assessment and treatment provided. The only reference to the differences between the two accidents is the following note, “Lower back pain … today 6-7/10…left side of the lower back … left side is worst since the 2nd MVA on August 26, 2019”.
16The respondent notes that this falls short of satisfying the legal test for removal from the MIG on the basis of a pre-existing condition. The respondent also points to the applicant’s own comments to Dr. Wang during the neurosurgical assessment where he stated that he did not seek medical attention following the May 10, 2019 accident as he felt fine.
17As noted, the legal test states that the applicant may be removed from the MIG if 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.
18The applicant has not provided compelling medical evidence of a pre-existing condition In fact, the only record referenced in support of this point is a clinical note completed by Ms. Padilla, a physiotherapist’s assistant. The note referenced does not provide compelling medical evidence of a pre-existing condition that precludes recovery if the applicant is kept within the confines of the MIG.
19The applicant has not provided any further evidence to support their position of a pre-existing condition that warrants removal from the MIG.
20Therefore, I find that the applicant has not proven, on the balance of probabilities, a pre-existing condition which warrants removal from the MIG.
The applicant has not proven a psychological impairment from either accident that warrants removal from the MIG
21The applicant submits that he should be removed from the MIG as a result of driving anxiety that developed following both accidents. He references an OCF-18 for a psychological evaluation signed by Mr. S. Shahrokhnia, clinical psychologist on October 22, 2019.
22The respondent submits that the OCF-18 is not sufficient evidence of a psychological impairment, and the applicant has advanced no further evidence of a psychological impairment.
23I agree with the respondent. An OCF-18 alone cannot be relied on for the diagnosis of a psychological impairment. There must be additional medical evidence such as an assessment report or clinical notes and records. According to the OCF-18, only a pre-screening interview was conducted by Ms. A. Shakourianfard, registered psychotherapist, who is unqualified to diagnose psychological impairments. There is no evidence the applicant was ever assessed by Mr. Shahrokhnia.
24As evidence of a psychological impairment has not been provided by the applicant, I find that, on the balance of probabilities, the applicant has not sustained a psychological injury in either accident that would warrant removal from the MIG.
The applicant is not entitled to any of the disputed treatment plans
25As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.
The applicant is not entitled to an award under Regulation 664
26Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
27The applicant submits that the applicant should have been removed from the MIG as they suffer from non-minor injuries, and therefore have had benefits unreasonably denied.
28As I have found that the applicant’s injuries fall within the MIG, there are no benefits which have been unreasonably withheld from the applicant.
The applicant is not entitled to interest
29As there are no benefits owing, no interest is payable.
ORDER
30For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries as defined under the Schedule.
ii. The applicant is not entitled to an award under Regulation 664;
iii. No interest is payable; and
iv. This application is dismissed.
Released: April 29, 2024
Julian DiBattista
Vice-Chair