NEB and Medical Treatments denied as applicant fails to show entitlement - Applicant v Aviva Insurance, LAT 17-002240

December 13, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva Insurance, LAT 17-002240 2017 CanLII 70685 (ON LAT)

Decision Date: October 18, 2017
Heard Before: Adjudicator Avvy Go

NEBs AND MEDICAL TREATMENT: Applicant does not provide evidence to support his claim for NEBs; applicant fails to provide evidence that his injuries fall outside the MIG;

The applicant was injured in a car accident on October 23, 2014, when a car suddenly pulled out and hit the back-passenger side of his vehicle. Following the accident, the applicant drove his vehicle to the police station and self-reported the collision.  At the time of the accident, the applicant was retired.  He exited the workforce in around 1993 or 1994 after sustaining a concussion. He applied for SABs but when Aviva denied the application and mediation failed, the applicant applied for arbitration to the LAT.

Issues

1. Is the applicant entitled to NEBs in the amount of $185.00 per week from April 23, 2014 to date and ongoing, denied by the respondent on April 10, 2015?
2. Is the applicant entitled to payment in the amount of $626 ($1,926.00 less $1300.00 previously approved) for chiropractic services set out in a treatment plan dated March 30, 2015?
3. Is the applicant entitled to payment in the amount of $1,995.33 for a psychological assessment set out in a treatment and assessment plan dated March 15, 2017?
4. Is the applicant entitled to interest for the overdue payment of benefits?

Results:

1. The applicant suffered predominantly minor injuries and thus is subject to the MIG.
2. The applicant is not entitled to NEBs;
3. The applicant is not entitled to the amount of $626 for chiropractic services;
4. The applicant is not entitled to payment in the amount of $1,995.33 for a psychological assessment.
5. As such, no interest is payable.

About four days after the accident, the applicant attended at his family physician’s office, but did not mention the accident to his physician nor report any injuries or pain.  The first time the applicant mentioned the accident to his family physician was on November 13, 2014.  The applicant first sought medical treatment for injuries stemming from the accident on November 12, 2014 when he attended at a physiotherapy clinic. A chiropractor, completed an OCF-3 on the applicant’s behalf.  On May 28, 2015, the applicant advised for the first time that he may have sustained a loss of consciousness in the accident, when he was assessed by a neurologist.

Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

The applicant has the burden of proving that his injuries fall outside of the minor injuries guideline and are not subject to the $3,500 treatment limit in s. 18 of the Schedule.  Specifically, the applicant has the burden of showing that the injuries are not minor injuries as defined by the Schedule, commonly known as “soft tissue injuries”.

The Arbitrator reviewed the medical evidence and determined that the injuries as described in these medical reports, including those submitted by the applicant, can by and large be described as sprain and strain and other “soft tissue injuries”. These injuries include injury of muscle and tendon at neck level; dislocations, sprain, strain of joints and ligaments of thorax, lumbar spine, pelvis, sacroiliac joint. The applicant’s long-standing family physician also documented soft tissue injuries to the neck and headache pain. Based on the medical evidence before me, the Adjudicator determined that the applicant suffered “soft tissue injuries” from the accident.

The Adjudicator then considered any pre-existing injuries. Evidence indicates that the applicant had a concussion in 1993 or 1994, and a heart attack about nine years prior. At the time of the accident, the applicant had intermittent back pain, and that he suffered from hypertension and headaches.  The applicant also had age-related degenerative changes to his neck.  An ultrasound on December 9, 2017 showed “mild to moderate lower cervical spondylosis”.  The IE report by physiatrist Dr. H. Hosseini diagnosed the applicant with cervicogenic headaches, in addition to sprain/strain of the cervical spine, thoracic spine and right lumbar spine. An MRI scan dated January 17, 2014, showed brain atrophy related to aging but was otherwise unremarkable. 

The applicant’s diagnostic imaging “does reveal evidence of some pre-existing degenerative changes in his spine and shoulder.”  However, “it does not appear that these were significantly affected by the accident in question”.   The applicant underwent a Chronic Pain Assessment on March 14, 2017.  The report was based mostly on the applicant’s self-report.  The applicant reported that he suffers from headaches that are different from the type of headaches that he had prior to the accident, which are related to his neck pain, and that the neck pain is mostly present with physical activities like lifting and moving his head. A neurological examination of the applicant and found the result to be within normal limits.  A cervical spine examination and found there was full range of motion of his neck in flexion and extension, although side bending to the right was markedly reduced as well as side bending to the left was markedly reduced.  The report concluded that the applicant suffers from chronic neck pain, however the medical examiner was not provided with the applicants medical file, and this report contradicts all the other medical finding. On that basis the Adjudicator did not put much weight on the evidence.

Based on all of the above, The Adjudicator found the applicant’s injuries as indicated in the medical reports are predominantly minor injuries. 

Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from April 23, 2014 to date and ongoing?

The applicant submits that his life has changed since the accident and he should be entitled to NEBs as he suffers a complete inability to carry on his normal life.  For the reasons set out below, I find insufficient evidence to support the applicant’s claim for a NEB.

The Applicant must be able to prove that he has been continuously presented from engaging in “substantially all” activities in which they engaged in before the accident.  In order to do this, one must look at the applicant’s pre and post-accident activities over a reasonable period of time before the accident, and while the applicant submits he has a complete inability to carry on a normal life, the evidence does not support that claim.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.