Applicant repeatedly submits treatment plans with no supporting medical evidence - Injuries fall within MIG - 17-005134 v Aviva General, 2018 CanLII 76417 (ON LAT)

January 14, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-005134 v Aviva General, 2018 CanLII 76417 (ON LAT)

Date of Decision: April 6,2018
Heard Before: Adjudicator Sandra Driesel

MINOR INJURY GUIDELINE (MIG): applicant’s examinations from same doctor are repeatedly submitted without supporting medical evidence; IE’s reports from several physicians outline testing done to show injuries fall within MIG; injuries fall within the MIG

On December 22, 2015, the applicant was driving when he was hit by another car emerging from a driveway of a plaza.  The applicant returned to work within a week following the accident, working regular hours but with modified duties. The applicant sought benefits from Aviva pursuant to the SABs.

Aviva approved a plan for chiropractic and massage treatment in the amount of $2,200 on the basis of a treatment plan. Aviva also approved continuing chiropractic and massage treatment on May 4, 2016, in the amount of $1,300. The total of these payments reach the limit under the Minor Injury Guideline (“MIG”) of $3,500.

Subsequently, the applicant sought additional funding for:

1. A proposed in-house assessment for potential housekeeping and home maintenance benefits; and
2. Additional chiropractic and massage treatments.

Aviva denied additional funding in excess of the $3,500 MIG limit, citing that the applicant was not diagnosed with a catastrophic injury as a result of his car accident (“MVA”) and he did not purchase optional insurance benefits that would entitle him to further payment. Aviva also references the OCF-3 that concludes that the applicant can return to work on modified hours and duties and there is no inability to perform housekeeping and home maintenance services that were performed before the accident.

It is the applicant’s position that certain clinical notes and treatment plans share an opinion that he suffered effects from the December 2015 accident that are not contained within the MIG and therefore his requests for additional benefits are reasonable and necessary.

Aviva relies on the examinations by the three medical experts who all concluded that there was no evidence that the applicant requires physiological or physical treatment beyond what is available within the MIG.

Because Aviva refused to pay for certain medical benefits, the applicant applied to LAT for resolution of this dispute.

Issues:

1. Do the applicant’s injuries fall within the MIG?
2. Is the applicant entitled to a medical benefit in the amount of $1,410.13 for chiropractic services submitted on February 17, 2016 and denied on March 3, 2016?
3. Is the applicant entitled to a medical benefit in the amount of $1,297.79 for chiropractic services submitted on February 17, 2016 and denied on April 20, 2016?
4. Is the applicant entitled to a medical benefit in the amount of $2,038.46 for chiropractic services submitted on August 15, 2016 and denied on August 31, 2016?
5. Is the applicant entitled to a medical benefit in the amount of $1,531.80 for chiropractic services submitted on September 195, 2016 and denied on October 7, 2016?
6. Is the applicant entitled to interest on any overdue payment of benefits?

Results:

1. The applicant sustained a minor injury as defined under the Schedule and has not provided compelling medical evidence to establish that maximal medical recovery cannot be reached within the MIG treatment funding limit of $3,500, as prescribed by s. 18(1) of the Schedule.
2. The applicant is not entitled to the medical benefits claimed because he has already exhausted the funding provided under the MIG.
3. Since no payment is outstanding, the applicant is not entitled to interest.

The Adjudicator reviewed the Schedule and the MIG, and the medical evidence regarding the applicant’s injuries.

Do the applicant’s physical injuries fall within the mig?

On August 15, 2016, the applicant submitted an OCF-18 proposing additional funding for a total body assessment, additional chiropractic care and physical therapy at a cost of $2,038.46. This diagnosis was for the same impairments listed in the original OCF-3 report with the addition of Grand mal seizures.  The doctor notes that the seizure, which occurred on August 11, 2016, after the MVA, could affect response to any suggested treatment. The physician inicated that the applicant’s impairment is not a minor injury as defined in the Schedule and is outside of the MIG.  There was no record provided as to what medical evidence was used to support this theory.

In response to the above assessment, the insurer set up an assessment with an Occupational Medicine Physician. At the time of this assessment, the applicant was still working full-time hours with light duty restrictions as a material handler in a warehouse.  Because of his seizure in August 2016 (not related to the MVA), he could no longer drive a forklift.  The applicant reported an improvement of symptoms since the MVA but a subsequent accident in March 2016 re-aggravated his injuries. Various tests were conducted on the applicant which concluded that given their nature, the physical injuries originally reported from the December 22, 2015 MVA should have resolved. The doctor did suggest that the applicant follow up with his family doctor for a right knee MRI.  The physician determined that the applicant’s injuries would fall within the scope of the MIG.

On September 19, 2016, the applicant submitted another OCF-18 proposing additional funding for a total body assessment, additional chiropractic care and physical therapy at a cost of $1,531.80. There was a diagnosis of the applicant as having the same impairments as noted on the previous OCF-18 report of August 15, 2016. Again, the doctor notes that the post-accident seizure could affect response to any suggested treatment and indicated that the applicant’s impairment is not a minor injury. There was no record provided as to what medical evidence was used to support this theory.  In this treatment plan, the doctor suggests a different ratio of manipulation and therapy sessions and omits the request for a back support that was in the August plan.

In response to the above assessment Aviva set up an assessment with another physician. During this examination, the applicant reported that he was receiving massage and exercise therapy twice per week until a second MVA on March 4, 2016. His sessions then increased to three times per week.  He explained that he attended Brimley Active Rehabilitation Centre twice during the week and Mackenzie Medical once on the weekends.  He notes that he went to see his family doctor monthly from the time of the MVA until June or July 2016. There was no diagnostic imaging available from either the original MVA or the post March 2016 MVA. After extensive examination, the physician concluded that the applicant’s injuries from the December 22, 2015 MVA fall within the MIG and the doctor did not find the proposed OCF-18 of September 19, 2016 to be reasonable or necessary.

The Adjudicator preferred the evidence of the Insurer’s Examinations indicating testing methods and results.

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