Citation: Misiti v. Aviva General Insurance Company, 2024 ONLAT 22-006530/AABS

Licence Appeal Tribunal File Number: 22-006530/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:

Felicia Misiti

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Braden Adsett, Counsel

For the Respondent:

Melanie Sousa, Counsel

HEARD: In Writing

July 12, 2024

OVERVIEW

1Ms. Felicia Misiti (the applicant), was involved in an automobile accident on September 23, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General 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 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?

ii. Is the applicant entitled to $1,081.67 for chiropractic services, proposed by CBI Health – Brantford West in a treatment plan/OCF-18 (“plan”) submitted May 17, 2022, and denied May 20, 2022?

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

iv. Is the applicant entitled to a special award under s. 10 of O. Reg. 664, because of unreasonably withheld or delayed payments?

RESULT

3I find that:

i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.

ii. As the applicant remains in MIG, she is not entitled to the treatment plan at issue.

iii. As no payments are overdue, interest is not payable.

iv. As no payment were unreasonably delayed or withheld, no award is payable.

ANALYSIS

The Minor Injury Guideline (“MIG”)

4Section 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.”

5An 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 from any accident-related minor injury if they are kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

6The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from due to a pre-existing injury.

7The respondent argues that the applicant has not met the burden of proof that her pre-existing injury, precludes her recovery within MIG.

The applicant remains within the MIG

8I find that the applicant has not met her onus to demonstrate that she suffered from a pre-existing injury that would preclude her recovery within MIG.

The applicant does not suffer from a pre-existing injury.

9I do not find that the applicant suffers from a pre-existing injury.

10An 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 from any accident-related minor injury if they are kept within the MIG, pursuant to s. 18(2) of the Schedule.

11The test in s. 18(2) has two mandatory parts: it is not enough to show there is a pre-existing injury; the applicant must also provide persuasive evidence that such pre-existing injury would preclude her recovery from any accident-related minor injury.

12The applicant submits that her pre-accident history of neck and back pain, and headaches are sufficiently well documented to meet the onus of proving a pre-existing injury.

13The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that a pre-existing injury would preclude her recovery with MIG.

14The applicant relies on clinical notes and records (CNRs) from Dr. Campos-Bustamante, her family doctor and Dr. Legault, her rheumatologist, Dr. Chmiel, a physiatrist, and Dr. Farhani, neurologist.

15The respondent relies on Insurer’s Examinations including a general practitioner assessment by Dr. Kopyto.

16The CNRs of Dr. Campos-Bustamante do outline that the applicant was suffering from neck and back pain, along with headaches prior to the accident. What I did not find in the CNRs is a diagnosis or compelling medical evidence to support the claim that the applicant’s pre-existing conditions would preclude her recovery from any accident-related minor injury in MIG.

17The CNRs of Dr. Legault outlines the results of a variety of imaging of the applicant. An X-ray of the applicant’s c-spine was normal and the doctor opined that the pain was mechanical in nature. The doctor ordered a follow-up MRI that revealed minimal irregularities in the sacroiliac joints, L4-L5, small disc bulge, and L5-S1 mild disc bulge. The remainder of the spine was unremarkable. Finally, on January 12, 2021, the doctor noted myofascial neck pain. In review of the CNRs, I am not directed to compelling medical evidence to prove that the applicant would be precluded from recovery from any accident-related minor injury if she were kept in MIG.

18The CNRs of Dr. Chmiel outline treatments that the doctor undertook to provide pain relief to the applicant. This included pressure point and Botox injections. The doctor also provided an opinion on a completed MRI that indicated unremarkable results. There was no diagnosis or compelling medical evidence in the CNRs indicating that the applicant’s her pre-existing condition would preclude her recovery from any accident-related minor injury if she were kept in the MIG.

19The neurology report of Dr. Farhani completed on June 6, 2022, was the result of a telephone interview with the applicant. The report notes that the applicant has had headaches since she was 17, and the doctor posits that the headaches have been aggravated by the motor vehicle accident. An interesting note in this report is where the doctor also mentions that neck pain can be a prodromal symptom of migraine, which the applicant reports suffering from since she was 17.

20A general practitioner assessment was completed by Dr. Kopyto on January 20, 2022. This was an in-person examination. During the physical examination, some ROM restrictions were noted in her cervical region, with all other areas testing normal. The clinical findings of the doctor are that the applicant had suffered a minor injury from the motor vehicle accident, and that “from a clinical presentation perspective, she presents compatible with her pre-accident history of neck pain.” He did not find that her pre-existing injury would preclude her recovery in MIG.

21In review of all the medical evidence presented to me, I am not directed to compelling medical evidence that the applicant’s pre-existing neck and back pain, along with headaches would preclude her recovery from any accident-related minor injury if she were kept in the MIG. There is a lack of detail on the applicant’s health issues in the CNRs of Dr. Campos-Bustamante precluding her recovery in MIG. Dr. Kopyto directly addresses pre-and post- motor vehicle accident presentation in his clinical finding that “from a clinical presentation perspective, she presents compatible with her pre-accident history of neck pain.” When I combine this fact along with all the medical imagining submitted that show no issues with the applicant C-spine, I do not find that the applicant has met her onus of proving on a balance of probabilities that her pre-existing neck injury precludes her from recovering in the confines of MIG.

22The applicant has not proven on a balance of probabilities that she suffers from a pre-existing condition that precludes her from recovery from any accident-related minor injury if she were kept in the confines of MIG.

Conclusion

23For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

24As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

Interest

25As no benefits are overdue, it follows that no interest is payable.

Special Award

26No special award under s. 10 of O. Reg. 664 because of unreasonably withheld or delayed payments is owed. As no benefits were unreasonably delayed or withheld by the respondent, no award is payable.

ORDER

27I find that:

i. The applicant remains subject to the MIG.

ii. The applicant is not entitled to payment for any treatment plans.

iii. As nothing is owed, no interest is payable.

iv. As no benefits were unreasonably withheld or delayed by the respondent, no award is payable.

28The application is dismissed.