Why AB claim doesn’t clear minor injury guideline hurdle

An applicant who failed to demonstrate her injuries weren’t minor cannot receive benefits beyond the minor injury guideline (MIG), an adjudicator determined in an Aug. 14 Licence Appeal Tribunal (LAT) decision (Reid v. Aviva General Insurance, 2023 ONLAT 20-015102/AABS – A).

The MIG limits rehabilitation benefits to $3,500 and defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

The applicant, Vinessa Reid, was involved in an automobile accident on Jan. 20, 2019, after which she saw her family doctor. She told the doctor she’d experienced increased low back pain and neck and shoulder pain since the accident. The doctor prescribed naproxen and recommended physiotherapy and massage therapy.

On Feb. 6, 2019, she returned to her doctor reporting headaches and sensitivity to light and sound. She also described depression and anxiety following the accident and received a referral for cognitive behavioural therapy from her doctor.

“There is no information in the CNR’s [clinical notes and records] following the referral by Dr. Dennis H. Forrester, of the applicant availing herself of the psychological counselling. In addition, there is no reference to the applicant being prescribed medication for depression, anxiety or any psychological symptom,” LAT adjudicator Janet Rowsell wrote in her decision.

The applicant underwent cervical spine and left shoulder x-rays on Sept. 24, 2019. They did not detect any fractures, dislocation, prevertebral soft tissue swelling or misalignment in the cervical spine or left shoulder, LAT documents said. “The cervical spine and disc spaces in the diagnostic test were likewise described as unremarkable. The applicant underwent a left shoulder ultrasound on Sept. 26, 2019, which resulted in no findings of tears, tendinosis, impingement, or bursitis.”

On Sept. 30, 2019, the applicant met with her doctor “who described the ultrasound and x-ray results as normal.”

LAT documents noted the applicant had a history of work-related health conditions prior to the accident.

For example, in notes from her doctor dated Jul. 5, 2016, and in Aug. 2016, the applicant reported knee pain which required she avoid climbing ladders at her workplace for two-to-four weeks. Her doctor recommended knee exercises and weight management. Notes from May 10, 2017 indicted the knee condition had improved and the applicant was able to return to the conventional physical demands at her workplace.

Pre-existing conditions

Pre-existing conditions, which are later made worse by an accident, can result in benefits payments beyond the MIG. But the applicant bears the burden of proof to show the:

• presence of a pre-existing medical condition;
• pre-existing medical condition was documented by a health practitioner before the accident; and
• person’s treating health practitioner determined and provided compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

LAT documents indicated a gap from Nov. 25, 2019 to Jun. 3, 2021 in the applicant reporting accident-related pain symptoms.

“I note the gaps in the applicant’s self-reports of accident-related symptoms more than two years following the accident, which considered together with the normal results of diagnostic tests taken in Sept. 2019, cause me to find the applicant’s description of accident-related pain symptoms in Aug. 2021 to be unreliable,” Rowsell wrote.

The respondent submitted the applicant’s family physician did not make a formal diagnosis, but predominantly mentioned biomechanical back pain, which falls under the minor sprains and strains category covered by the MIG.

And a Jan. 6. 2022 orthopedic surgery addendum report, which followed an initial Jan. 2, 2020 report prepared by Dr. Aaron Boynton, described the applicant as having “intermittent low back pain consistent with her pre-accident history, with no evidence of structural injury that occurred as a result of the subject accident.”

Referencing this, Rowsell wrote, “I agree with the respondent’s submission that Dr. Boynton found there was no significant pre-existing musculoskeletal condition that would prevent the applicant from recovering within the MIG.

“The applicant has failed to meet the burden of proof by demonstrating, on a balance of probabilities that her injuries are not minor or that she is prevented from maximal recovery within the MIG.”

In dismissing the application, she wrote, “I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG, and that the MIG has been exhausted.”

Feature image by iStock.com/Staras