Semih v. Aviva Ins. Co., 2022 CanLII 27252 (ON LAT)

Another Example of Chronic Pain and Removal from MIG

In this case, the Applicant was injured in a motor vehicle accident (MVA) on January 25, 2018. He sought med-rehab benefits (among other benefits) from the Respondent insurer, Aviva. The Respondent denied his claim for med-rehab benefits beyond the Minor Injury Guidelines (“MIG”) on the basis that his injuries were predominantly minor in nature. The Applicant disagreed with the Respondent’s denial and brought the dispute before the Licence Appeal Tribunal (“LAT”).

In the final result, the LAT member who heard his application decided that the Applicant was entitled to med-rehab benefits beyond the MIG and that the cost of his psychological assessment was reasonable and necessary but that he was not entitled to the nonearner benefit.

If an insured person’s injury is classified as minor, nonminor or catastrophic, it merely allows that person to apply for benefits within the applicable monetary tier. If an individual’s injury is classified as minor, it allows them to apply for medical and rehabilitation and attendant care benefits for a combined total of $3,500. If a person’s injury is classified as minor then they are not necessarily entitled to all of $3,500 but to the cost of reasonable and necessary combined med-rehab treatment and attendant-care costs up to that limit.

An injury is classified as a minor injury if it is “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”[1]. Recovery for med-rehab benefits for predominantly minor injuries is limited to $3,500.[2] The Tribunal has noted three recognized exceptions to this limit: a) if the applicant proves that a preexisting condition, documented by a medical practitioner, prevents maximal medical recovery under the $3,500 limit; b) if the applicant proves that he/she sustained a psychological impairment; or c) if the applicant proves that he/she sustained a chronic pain condition with a functional impairment. These are exceptions because they are not covered by the statutory definition of minor injury.

The Applicant made four main arguments in support of his position that he falls into an exception to the MIG limit of $3,500: i) his diagnosis of bursitis – i.e. a type of inflammation – in his left shoulder; ii) his preexisting chronic pain condition; iii) his current chronic pain as a result of the accident; and iv) his psychological impairments.

The Applicant’s evidence included his own Affidavit, an OCF-3 Disability Certificate, Report of psychiatrist Dr. Dessouki, findings of the psychological screening interview at Psychology Health Solutions and various clinical notes and records. The Respondent relied upon the reports of various independent examinations.

The Respondent’s position was that, first, the OCF-3 revealed that the physical impairments qualify as minor injuries; second, that partial rotator cuff tear and bursitis count as minor injuries; and third, that Dr. Dessouki did not actually diagnose chronic pain.

The Member agreed with the Respondent’s first submission that the OCF-3 indicated that the Applicant’s physical impairments constituted minor injuries.

The Member also agreed with the Respondent’s second submission that the partial rotator cuff tear and bursitis were minor injuries. The LAT Member noted that the LAT has consistently held that a partial thickness tear, unlike a full thickness tear, does not warrant removal from the MIG; and that inflammation conditions such as bursitis fall within the MIG as accident-related sequelae (see the statutory definition of minor injury quoted above).

Nevertheless, the Member disagreed with the Respondent’s third submission that chronic pain had not been established. Although Dr. Dessouki’s report indicated that he did not actually diagnose the Applicant with chronic pain syndrome, he did state his opinion that the Applicant’s impairments fell outside of the MIG and provided a diagnosis of myofascial pain syndrome and features of a chronic pain syndrome and he stated that further investigation, including from a psychological perspective, would be needed. This medical evidence, combined with the Applicant’s evidence of his pre-accident and post-accident pain and the fact that he attempted to access additional treatment, was enough to prove that removal from the MIG was warranted, since further treatment appeared to be necessary.

The cost of the psychological impairment was also approved by the Member as being reasonable and necessary, since the Applicant’s Affidavit attested that he had ongoing emotional difficulties (such as anxiety, stress and panic attacks) and since Dr. Dessouki’s recommended a psychological assessment to investigate the Applicant’s chronic pain condition. Moreover, the cost of the psychological assessment – about $2,200 – was in line with industry standards.

Thus, the Applicant was held to be entitled to med-rehab benefits beyond the MIG limit.

On a side note, the Applicant was held to be not entitled to the nonearner benefit (“NEB”). He applied for an NEB of $185 per week from March 1, 2018 to January 25, 2020. An insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.[3] A complete inability to carry on a normal life is defined as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.[4] The guiding principles for NEB entitlement generally require a comparison of the applicant’s pre- and post-accident activities.[5] The Member examined all of the evidence and concluded that the Applicant had reduced functionality, but not a complete inability to carry on a normal life.

This case illustrates how, although an insured may not be formally diagnosed with chronic pain syndrome, there may be sufficient evidence in the medical records – such as a doctor’s recommendation for further investigation and noted features of chronic pain – that could be persuasive in an argument for removal from the MIG limit.

[1] SABS, s. 3(1).

[2] SABS, s. 18(1).

[3] SABS, s. 12(1).

[4] SABS, s. 3(7)(a).

[5] Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (CanLII).