January 29, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
TTK v Aviva LAT 17-002688
Decision Date: December 14, 2017
Heard Before: Adjudicator S. F. Mather
MIG: do pre-existing injuries remove applicant from MIG? Applicant shows pre-existing injuries remove her from MIG; applicant fails to show that treatment plans are designed to treat the injuries to pre-existing conditions.
TTK was injured in a car accident on March 25, 2015 and sought various medical benefits pursuant to the SABs. When Aviva denied the claims on the basis that TTK’s injuries fall within the MIG TTK applied to the LAT.
TTK argues that the Guideline does not apply to her because her injuries are not predominantly minor injuries and because she has pre-existing medical conditions that will prevent her from achieving maximal recovery if she is subject to the $3,500 limit. Aviva argues that if the Guideline does not apply to TTK, the Adjudicator must deny the proposed Treatment and Assessment Plans because they are not reasonable and necessary.
- Do the injuries sustained by TTK fall within the Guideline?
- If the answer to issue one is no:
- Is TTK entitled to receive a medical benefit for chiropractic services in the amount of $3,581.17 as submitted on April 27, 2015?
- Is TTK entitled to receive a medical benefit for chiropractic services in the amount of $3,749.78 as submitted September 13, 2016?
- Is TTK entitled to receive a medical benefit for chiropractic services in the amount of $3,225.62 as submitted on November 8, 2016?
- Is TTK entitled to payments for the cost of a psychological assessment in the amount of $1,770.91 on October 6, 2016?
- Is TTK entitled to interest on the overdue payment of benefits?
- Is TTK entitled to costs?
- TTK’s injuries do not fall within the Guideline.
- TTK is entitled to:
- the cost of a psychological assessment in the amount of $1,770.91 16.
- TTK is not entitled to:
- a medical benefit for chiropractic services in the amount of $3,581.17.
- a medical benefit for chiropractic services in the amount of $3,749.78.
- a medical benefit for chiropractic services in the amount of $3,225.62.
- TTK is entitled to interest on any overdue payment of the cost of the psychological assessment as submitted on October 6, 2016.
- TTK is not entitled to costs.
Adding a constitutional issue
On September 15, 2017, TTK served and filed a Notice of Motion asking for an order permitting her to add the case of Abdirahiman Abyan and Sovereign to its Book of Authorities. The motion was required because the July 7, 2017 deadline for TTK’s submissions and the September 12, 2017 deadline for her reply submissions had passed. Abyan is a very recent decision from the FSCO where the adjudicator found that the Guideline violates s. 15 of the Canadian Charter of Rights and Freedoms. Aviva objected to the case being considered because it was not provided by the deadline set in the Case Conference Order and it was prejudicial to Aviva to allow a new issue to be raised without providing an opportunity for a proper response.
Ms. Guliyeva acknowledged that TTK did not provide proper notice of a constitutional challenge and that the issue was not properly before the Adjudicator. She did not request an adjournment of the hearing and was prepared to proceed on the issues identified in her application and confirmed in the case conferences. She was simply asking for the case to be considered in the deliberations.
The Adjudicator noted that by hearing submissions on Abyan the LAT would be allowing TTK to argue constitutional issues without notice to the Attorney General of Ontario and at great prejudice to Aviva. The Adjudicator was satisfied that there was no point in allowing TTK to argue the Abyan case in her closing submission when it was agreed that the constitutional issues raised in Abyan are not before the LAT in this hearing.
Accordingly, the motion was dismissed.
The MIG establishes a framework for the treatment of minor injuries. Section 18(1) limits recovery for medical and rehabilitation benefits for minor injuries to $3,500, minus any amounts paid in respect of an insured person under the Guideline. The Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider is required to determine and provide compelling evidence that the person has a pre-existing medical condition that was documented prior to the accident and which will prevent the injured person from achieving maximal recovery if benefits are limited to the Guideline cap. The onus of establishing entitlement beyond the MIG rests on the applicant.
TTK was sixty-one years old with a previous history of degenerative osteoarthritis, depression, hypertension and anxiety at the time of the accident. Medical reports confirm the pre-existing conditions and their diagnosis.
TTK testified that she has two problems resulting from the accident. Her first problem is pain in her whole body, including her left knee and her second problem are her emotions. She testified that before the accident she was a stronger person, but the car accident changed her life. TTK argues that the physical and psychological impairments she suffered in the accident take her out of the Guideline. Impairment is defined in the Schedule to mean a loss or abnormality of a psychological, physiological or anatomical structure or function. She listed the impairments.
For psychological impairments, she argues that she experienced changes to her mood, a driving anxiety and has a major/severe depressive disorder.
The Adjudicator determined that based on the extensive medical evidence, and on the balance of probabilities, TTK has sustained an impairment to her left knee in the accident that is not predominantly a minor injury because the accident caused an exacerbation of bi-compartmental knee osteoarthritis which led to a decompensation of her left knee osteoarthritis. This impairment takes her out of the Guideline and gives her access to more than $3,500 in medical and rehabilitation benefits.
Having determined that TTK did not suffer predominantly minor injuries in the accident, there is no need for me to determine if TTK has a pre-existing medical condition that meets the requirement in the Schedule.
The Schedule provides that medical benefits shall pay for all reasonable and necessary expenses incurred by an insured or on behalf of an insured person as a result of the accident including chiropractic, psychological, occupational therapy, and physiotherapy services. The Adjudicator considered whether the treatment plans were reasonable and necessary.
On the basis of the evidence the Adjudicator was not able to determine whether the treatment plans for chiropractic were designed to treat the knee impairment. The Adjudicator accepted the psychological treatment plan was reasonable and necessary.