Applicant wins Insurance Dispute and is entitled to higher maximum Accident Benefits

Posted by Stevenson Whelton LLP
December 07, 2019

A woman was injured in a car accident and applied to her insurer, Aviva Insurance Company, for statutory accident benefits.  And, when Aviva refused to pay for certain medical benefits, including physiotherapy treatments, the applicant appealed her case with Ontario’s Licence Appeal Tribunal (the ‘Tribunal’), in 17-004394/AABS v Aviva Insurance Company (2018).

The treatments that were denied included: physiotherapy, acupuncture and chiropractic treatments that were recommended by her health practitioner, an orthotics assessment, and a further psychological assessment.

Under Statutory Accident Benefits (SABs) guidelines, the onus is on an applicant to demonstrate that the medical benefits they are applying for are, on a balance of probabilities, necessary and reasonable as a result of the injuries caused by the accident.  In the current case, after she was injured in a car accident in November 2013, a woman suffered from chronic pain, headaches and dizziness, and also experienced strains and pain in her cervical, lumbar and thoracic spine.  And, the accident victim alleged that her pain and back issues affected her ability to function in normal tasks and in the essential tasks of her job.

The applicant was recommended to participate in a rehabilitation treatment plan to deal with her injuries. And, in response to her application for benefits, Aviva required her to submit to examination by the insurer’s physician.  The physician reported that the applicant’s injuries (which he described as limited to contusions and sprains and strains of the spine), fell within the Minor Injury Guidelines (MIG) and were therefore not eligible for the recommended rehabilitation treatments, as these expenditures would cause the applicant to exceed the maximum benefits ($3500) currently allowed under MIG.   

Due to a recommendation that the applicant undergo a psychological assessment, the insurer also sent her to be assessed in another insurer examination.  In this instance, the insurer’s physician, Dr. Oshidari, diagnosed the applicant as suffering from Mild Adjustment Disorder with Depression and Anxiety.  Based on this assessment, the applicant was removed from MIG and determined to be eligible for higher maximum benefits.  The applicant also completed a further insurer examination and the diagnosis resulting from this examination, along with Dr. Oshidari’s opinion, was that the applicant suffered from Whiplash Associated Disorder, tension-type headaches, and myofascial sprain/strain injuries in the thoracic and lumbar regions, as a result of the car accident.  The two physicians relied, in part, on the results of an MRI that showed abnormalities in the applicant’s spine.

Despite these medical opinions, Aviva continued to deny medical benefits for the recommended treatments.  Aviva argued that they believed the applicant’s current impairments were not caused by the accident for which she was claiming benefits because an X-ray taken after the November 2013 accident did not show the abnormalities which were revealed in the January 2016 MRI.  And, the applicant did, in fact, report to her family doctor that she was involved in another car accident about two years after the original accident and two months before the MRI.  Although the applicant testified that the report of this later accident was a mistake, there were differences in the reported details of the accident (i.e. one was reported as a rear-end collision and the other involved a side hit) that led the Adjudicator to believe that a later accident did, in fact, take place.

However, notes taken by the applicant’s family doctor revealed that the applicant had complained of back pain several times after the 2013 accident.  And, although she displayed a normal range of motion, her doctor recommended her to a pain clinic and for further physiotherapy treatments due to persistent tenderness in her movements and when touching her lumbar and thoracic areas.  When the applicant’s condition did not improve, she was scheduled to undergo the MRI in January 2016. 

A few months after the MRI, the applicant’s chiropractor noted that the applicant continued to experience a restricted range of motion in her back and shoulders, as well as pain in her head and upper back.  Accordingly, the chiropractor recommended a series of treatments to achieve physical rehabilitation and increased function (which include the treatments for which she is seeking compensation), so that the applicant could return to her pre-accident level of physical well being.

The Adjudicator concluded that the applicant’s ongoing complaints of tenderness and back pain, along with the findings of soft-tissue injuries diagnosed by several physicians, suggested, on a balance of probabilities, that the applicant suffered lasting injuries in the 2013 accident. The Adjudicator also believed that the applicant’s persistent pain is in some part a result of her perception and expectation of pain, but treatments that involve exercising of her spine will demonstrate that she possesses a capacity to move her back. And, “there is self-reported evidence that this treatment has, in fact, reduced this pain”.

In conclusion, the Tribunal disagreed with Aviva’s decision to deny payment of the various medical benefits and treatments that were denied, and found that the applicant demonstrated that these treatments were needed and reasonable.  The Tribunal also found that the insurer is obligated to pay the applicant interest for the overdue payment of benefits.

If your vehicle insurer has denied you owed benefits, talk to an experienced Oakville accident claims lawyer at Stevenson Whelton MacDonald & Swan to learn about your legal rights and let us fight to get you the benefits you deserve.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.