Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 130
FSCO A04-002278
BETWEEN:
THOMAS CHRISTOPHER LITTLE
Applicant
and
AVIVA CANADA INC.
Insurer
REASONS FOR DECISION
Before: David Muir
Heard: May 16 and 17, 2005, in St. Thomas, Ontario. Written submissions were received on June 3, June 10 and June 21.
Appearances: Karen Frishette for Mr. Little Susan Bromley for Aviva Canada Inc.
Issues:
Thomas Christopher Little was injured in a motor vehicle accident on December 22, 2001. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva terminated weekly income replacement benefits on December 22, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Little applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Mr. Little was rear-ended while waiting to make a turn at an intersection in St. Thomas. He did not initially attend for medical attention but later on the day of the accident he experienced significant pain in his lower back with pain radiating down his right leg. He saw his family doctor, Dr. Dougherty, who diagnosed low back strain and prescribed Vioxx, Losec, and Amitriptyline. He began physiotherapy. He received lumbar spine pain injections in June and July 2002. He was scheduled for a third round of injections in August but they seemed only to aggravate his complaints of pain and he decided against it.
Mr. Little had a completely unremarkable pre-accident medical history except for an asymptomatic disc bulge at L-4, L-5. It is uncertain whether or not there is any connection between the disc bulging and his complaints since the accident.
Despite the apparently minor nature of the initial injuries, there was never any substantial question that Mr. Little was unable to return to his pre-accident employment as an office furniture installer. This had been Mr. Little's primary employment activity for more than a decade prior to the accident. It is considered to have been a moderate to heavy type of work with considerable lifting, bending and twisting while carrying load.
Dr. Deathe, who conducted an insurer's examination in November 2002, a little less than one year post accident, concluded that Mr. Little could not return to his pre-accident employment at the time. Dr. Deathe's diagnosis was right lower lumbar facet sprain.
Mr. Little has also complained of headaches, some minor cognitive difficulties – difficulty with concentration and depression.
Pilot terminated Mr. Little's income replacement benefits on December 22, 2003 on the basis of a vocational assessment conducted in June 2003. He requested a post 104-weeks disability DAC assessment, which took place in January 2004. Income replacement benefits were reinstated by Aviva and the