January 26, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
B. U. v Aviva Canada Inc – Entitlement to benefits; MIG; chronic pain; IEs;
B. U. v Aviva Canada Inc
Date of Decision: November 1, 2016
Adjudicator: Chloe Lester
B. U. was injured in car accident on May 5, 2014. B.U. claims the injuries sustained are not minor and fall outside the Minor Injury Guideline (the “MIG”) limit of $3,500.00 for rehabilitative and medical benefits. B.U. relies on his own examinations, and the insurer’s examinations to support his claim, specifically the submissions surrounding his diagnosis of chronic pain syndrome, psychological impairments, strains, sprains and tendinitis. As such, B.U. asserts that the Treatment and Assessment Plans (OCF-18) denied by Aviva should be approved. B.U. is making the claim that he required attendant care benefits from the time of the accident until 104 weeks post-accident.
Disputes arose between B.U. and Aviva concerning his entitlement to accident benefits, and B.U. applied for dispute resolution services to the LAT.
- Do B.U. ’s injuries fall within the Minor Injury Guideline? If no, is B.U. entitled to the following benefits:
- Is B.U. entitled to an attendant care benefit in the amount of $1,374.23 per month from May 5, 2014 until May 5, 2016?
- Is B.U. entitled to a medical benefit for exercise and therapy services by Dr. K in the amount of $1,498.72, less amounts approved of $563.72, as detailed in a Treatment and Assessment Plan dated June 10, 2015?
- Is B.U. entitled to payments for the cost of examination by Dr. W for a physiatrist assessment, in the amount of $2,130.00, recommended by a Treatment and Assessment Plan dated September 17, 2014?
- Is B.U. entitled to payments for the cost of examination by Dr. M for a neurological assessment in the amount of $2,130.00, recommended in a Treatment and Assessment Plan dated July 8, 2014?
- Is B.U. entitled to payments for the cost of examination by Dr. Ke for a psychological assessment in the amount of $2,109.36, recommended in a Treatment and Assessment Plan dated July 7, 2014?
- Is B.U. entitled to a rehabilitation benefit for therapy services by Dr. R) in the amount of $2,815.00, recommended in a Treatment and Assessment Plan dated July 3, 2014?
- Is B.U. entitled to a rehabilitation benefit for psychological services by Dr. Ke in the amount of $5,608.40, recommended in a Treatment and Assessment Plan dated July 21, 2014?
- Is B.U. entitled to payments for the cost of examination by Ms. EE for an attendant care assessment in the amount of $2,014.40, recommended in a Treatment and Assessment Plan dated June 30, 2014?
- Is B.U. entitled to a rehabilitation benefit for assistive devices in the amount of $1,837.38 recommended in a Treatment and Assessment Plan dated July 19, 2014?
- Is B.U. entitled to interest for the overdue payment of benefits?
- B.U. ’s injuries do not fall within the Minor Injury Guideline.
- Payment for a physiatrist assessment, in the amount of $2,130.00.
- Payment for the cost of a neurological assessment in the amount of $2,130.00.
- Payments for the cost of a psychological assessment in the amount of $2,109.36.
- Payment for psychological services in the amount of $5,608.40
Aviva submits that the injuries sustained during the accident are minor as set out in the Minor Injury Guideline and should be subject to the $3,500.00 limit. Aviva claims their position is supported by their insurer’s examinations. Aviva argued the Treatment and Assessment Plans (OCF-18) were properly denied and B.U. is ineligible for attendant care benefits as the injuries were minor in nature. Further, if the injuries are found not to be minor, Aviva relies on their insurer’s examinations, which support their position that the benefits claimed are not reasonable and necessary.
The primary issue of whether B.U. sustained a minor injury as defined by section 3 of the Schedule needs to be addressed first to determine the reasonableness and necessity of the Treatment and Assessment Plans. In accordance with section 3 of the Schedule, “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.” The Schedule states that the sum of benefits payable under medical and rehabilitation benefits are limited to $3,500. The $3,500 limit does not apply if the person “provides compelling evidence … that the person has a pre-existing medical condition that will prevent that person from achieving maximum medical recovery from the minor injury if [he or she] is subject to the $3,500 limit…”.
Upon review of the evidence and the law the Arbitrator determined that B.U. has proven through the medical assessments and his testimony that he sustained numerous injuries as a result of the accident. It appears from the evidence provided B.U. did not have any pre-existing conditions that would have prevented him from achieving maximum medical recovery within the MIG limits, therefore the question remains whether the injuries sustained due to the accident fall within the definition of a minor injury.
Aviva conducted six insurer examinations (IEs), in paper and in-person reviews conducted by a physiatrist, a general practitioner, a psychologist and an occupational therapist. Aviva relies on these IEs that found that B.U. ’s injuries are minor and fall within the MIG
The Arbitrator disagreed and found that B.U.’s injuries fall outside the MIG for the following reasons.
The injuries sustained by B.U. can be categorized into two groups - physical injuries and psychological injuries. Many of the physical injuries fall within the Minor Injury Guideline and are minor in nature. B.U. is relying on a report by Dr. W that diagnosed B.U. with chronic pain syndrome. As such, B.U. is using the Arruda v Western decision to support the proposition that a diagnosis of chronic pain syndrome falls outside of the MIG. However, in this case, the report and B.U. have not sufficiently shown how the diagnosis of chronic pain syndrome is not a sequelae of the soft tissue injuries.
B.U. ’s psychological injuries were diagnosed by Dr. Ke as “adjustment disorder with mixed anxiety and depressed mood, chronic and specific phobias, situational type (Heavy Equipment, Vehicle Driver and Vehicle Passenger)”. Aviva’s psychological report by Dr. C dated August 14, 2014 examined B.U. and found him “to be honest, open and frank throughout the interview”, and “he did not appear to be consciously attempting to malinger or exaggerate.” The report went on to say that B.U. presented as “somewhat withdrawn and flat”, and had findings of severe anxiety and severe depression. Dr. C concluded that B.U. ’s injuries were minor, as B.U. “did not present with impairments of a sufficient intensity or level of intrusiveness to meet a criteria for psychological diagnosis.”
Dr. C’s findings stand in contrast to the findings of many other examiners who found B.U. did suffer from a psychological impairment. Dr. M reports that B.U. is having migraines due to his anxiety and distress, significant psychological problems, cognitive impairment secondary to anxiety and emotional problems. Dr. Wong reports post-traumatic insomnia, psychological problems, and recommended anti-depressant medication. Dr. Crane states in his report that “the mechanism of injury was not particularly traumatic physically, but more so psychologically, … suggest a repeat formal psychological assessment because the prolonged nature of his symptoms may now change his diagnosis … [the] barrier to recovery in this individual’s case is his psychological challenges…”. B.U. was eventually prescribed venlafaxine for his anxiety.
Based on the above, the Arbitrator found there is overwhelming evidence that supports the position that B.U. suffers from a psychological impairment because of the accident.