Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 123

FSCO A16-003609

BETWEEN:

(CECILIA) EDRIS ROGERS-NASH

Applicant

and

AVIVA CANADA INC.

Insurer

Before: Arbitrator Marcel D. Mongeon

Heard: In person at ADR Chambers on February 22, 23 and 24, 2017

Appearances: Ms. (Cecilia) Edris Rogers-Nash participated Mr. Dale Rosenberg participated for Ms. (Cecilia) Edris Rogers-Nash Mr. Ahmad Khan participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. (Cecilia) Edris Rogers-Nash, was injured in a motor vehicle accident on August 2, 2015 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Are the Applicant’s impairments predominantly a “minor injury” as defined in the Schedule?
Is either party entitled to its expenses of this Hearing?

Result:

At this time, the Applicant’s impairments are predominantly a “minor injury” as defined in the Schedule and she is not entitled to any additional treatment.
By the agreement of the parties, there is no Order as to expenses.

EVIDENCE AND ANALYSIS:

Witnesses and Evidence in General

In establishing her case, the Applicant and her son testified as to their recollections of the accident and the injuries suffered. No other witness, including any health professional, presented evidence on the Applicant’s behalf. The Applicant presented medical evidence through documents that are referred to in my findings of the relevant facts.

In opposing the Applicant’s case, the Insurer presented two witnesses whom I qualified as experts in the noted fields: Dr. Alikhan (general medicine) and Dr. Bradbury (psychology).

Facts

The motor vehicle accident underlying the Applicant’s injuries occurred as follows: the Applicant was driving her 2015 Chevrolet Equinox. Her daughter was in the front passenger seat. It was evening on Sunday August 2, 2015, and they were returning to their home where the Applicant lives with three of her children, including her daughter.

The Applicant was stopped at the top of the ramp leading into the parking garage for her condominium building. The Applicant states her arms were too short to reach the key-operated lock which controlled the motor-driven door on the garage. She put her vehicle into park, exited the vehicle, engaged the key in the garage lock to open the door, re-entered the vehicle, put the vehicle into drive and proceeded down the ramp to enter the garage.

Something was not working properly. As the Applicant’s vehicle drove under the garage door, it began closing. The Applicant’s testimony was that she heard a “boom” when driving into the garage. She testified that she doesn’t remember what happened after that. She has no recollection of driving her vehicle into her normal parking space in the garage or anything else immediately after hearing the “boom”.

The Applicant described the accident in her OCF-1 as: “I was entering the garage of my building when suddenly the door closed on my car with me inside causing extensive damage.”²

The Applicant does remember that her head started hurting and that she had neck and back pain. She did not seek immediate medical attention. She saw her family physician, Dr. Wong, on Wednesday August 5, 2015.

The Applicant’s son testified that the front windshield was damaged on the vehicle. I note that his testimony is based on his view of the vehicle at some point after the accident. He was not in the vehicle at the time of the accident.

On August 6, 2015, the Applicant saw a chiropractor, William S. Hsu, who also had digital medical imaging of the Applicant available to him.³ In addition, an accompanying 8-page report outlined his initial assessment. In this assessment, the following is noted:

[The Applicant] reported being the driver of a vehicle stopped outside of her garage in the driveway. She left the vehicle to raise the garage door and when she sat down inside the vehicle to drive forward a large gust of wind reportedly slammed the garage door onto the roof of her vehicle. The door struck the front windshield and roof of her car hitting the top of her head. She was not prepared for the impact and was unsure if she lost consciousness.”

I do not accept this as a correct account of the relevant facts. I do not accept that there was evidence that anything hit the top of the Applicant’s head. No other evidence I was presented suggested these facts.

The assessment report contained clinical impressions that included a number of degenerative conditions and a number of “sprain/strains”. The report concludes with a clinical recommendation that “therapy should be provided within the MIG guidelines”. Although there are a number of general limitations suggesting “an expected delay in the [Applicant’s] recovery”, there are no conclusions in the report to suggest anything except a minor injury.

An OCF-3, signed on August 26, 2015 by the Applicant’s family physician,⁴ describes the Applicant’s injuries as “cervical strain”, “lumbar strain” and “muscular headaches”. The physician further certified that the Applicant had a substantial inability to perform the essential tasks of her employment and expected this to last 9 - 12 weeks.

I was presented the clinical notes and records of the Applicant’s family physician, Dr. Wong.⁵ Unfortunately, these handwritten notes are illegible to me. On the last day of the Hearing, there was an offer to have the physician testify to decipher these notes, but I denied the request on the basis that this should have had prior approval before the Applicant’s representative closed his case.

The Applicant was sent for medical imaging in October 2015. The report of that imaging was dated October 21, 2015.⁶ The imaging was of the chest, cervical spine and lumbar spine. Nothing extraordinary was noted.

On November 11, 2015, the Applicant’s physician continued to certify the Applicant as unable to work “for the next 3 months due to medical reasons”⁷ without any more detail about the medical reasons.

The Applicant received physiotherapy from the time of the accident until February 2, 2016, when funding was terminated.⁸ This was provided within the Minor Injury Guideline limits of $3,500.00.

Additional physiotherapy was proposed by Philip Palmer in an OCF-18 dated November 24, 2015 in the amount of $1,308.10.⁹ As a part of this form, in Part 4 the health practitioner certified that the impairment was predominantly a minor injury. $1,165.29 of this form was approved which took the Applicant to her $3,500.00 maximum under the Minor Injury Guideline.

Additional physiotherapy was proposed by Philip Palmer in an OCF-18 dated January 12, 2016 in the amount of $1,902.15.¹⁰ This form indicated that the injury was not predominantly a minor injury. The form referred to an attached reassessment, but that report was not made available to me as an Exhibit.

A psychological assessment was proposed by Dr. Eyal Bodenstein in an OCF-18, dated November 18, 2015, in the amount of $2,200.00.¹¹ In support of the assessment, the Applicant had undergone some psychometric testing. The health professional suggested the importance of further testing due to the complaints of the Applicant. However, I note that on a careful reading of the additional comments in this OCF-18, there is no comment or opinion of the health professional that suggests that any of the psychological concerns are a direct or proximate result of the original motor vehicle accident.

Orthotics were proposed by Philip Palmer in an OCF-18, dated February 23, 2016, in the amount of $550.00. In similar fashion, the Applicant’s family physician recommended that she should see a podiatrist for “plantar fasciitis” on March 21, 2016.¹² However, no additional information or opinion of a health care professional was presented as to how the orthotics related to the motor vehicle accident.

The clinical notes and a report of the Rothbart Centre for Pain Care, where the Applicant attended in February 2017, were provided.¹³ On page 18 of the report, it indicates that the impression of the health professional is that the source of the pain is a lumbar myofascial strain. I also note that the concluding notes of this report suggest that the report is intended for medical treatment purposes only and should not be used as a legal instrument.

As noted above, the Insurer presented two witnesses and a number of Insurer’s Examinations (“IEs”) into evidence.

By a report, dated December 9, 2015, Dr. Alikhan assessed the Applicant for an Income Replacement Benefit¹⁴ based on a physical examination of November 20, 2015 and a number of subsidiary reports referred to therein. Subsequently, by a report, dated February 3, 2016,¹⁵ Dr. Alikhan further performed a ‘paper review’ of the Applicant’s entitlement to medical treatment in excess of the Minor Injury Guideline limit. This subsequent paper review relied on the physical examination in the original IE.

Dr. Alikhan’s testimony and reports were consistent. He did not believe (in the words of his February 3, 2016 report) that the Applicant’s physical examination revealed any reliable evidence of a substantial musculoskeletal or neurological functional impairment or range of motion deficit resulting from the diagnosed accident-related injuries. Based on this overall view, he was also of the opinion that the Applicant’s injuries could be treated within the Minor Injury Guideline and that the orthotics were not necessary.¹⁶

On cross-examination, Dr. Alikhan acknowledged that arthritis can be asymptomatic for some time in a hypothetical person. He also acknowledged that a motor vehicle injury could cause such asymptomatic arthritis to become symptomatic. I note, however, that the cross-examination was on a hypothetical situation; Dr. Alikhan did not provide an opinion that such a case existed in the Applicant.

By a report, dated December 9, 2015, Dr. Cheryl Bradbury opined on the OCF-18 proposing psychological treatment, based on a psychological assessment conducted on November 19, 2015.¹⁷ An additional paper review provided an opinion on the need for a psychological assessment.¹⁸

Dr. Bradbury’s testimony and reports were clear and consistent. She was of the view that the Applicant had not suffered from any post-accident psychological sequelae nor did she require any form of psychological supports. She was clearly of the view that the treatment proposed by Dr. Bodenstein was neither reasonable nor necessary.

On cross-examination, a number of questions were directed to Dr. Bradbury which asked for her opinion on why the Applicant would be receiving prescriptions for various possibly psycho-active drugs. As a psychologist and not a MD, Dr. Bradbury indicated that such questions were outside of her scope of practice.

Although evidence was presented of various prescriptions being received by the Applicant, no medical evidence (other than the illegible clinical notes of Dr. Wong) was presented for the medical need of such prescriptions. There was no evidence tendered that the need for the prescriptions was related to or caused by the motor vehicle accident.

Additional IEs were presented, as follows:

Exhibit 34 (Drinkwater) Functional Abilities Evaluation
Exhibit 35 (Stephens) Job Site Evaluation
Exhibit 36 (Morris) Functional Abilities Evaluation

Generally, these additional IEs were relevant to the Income Replacement Benefit that is no longer in dispute as it was withdrawn prior to the Hearing.

Analysis

It is trite law for any Hearing that the Applicant has the burden of proof. In a case such as this, this means that the Applicant must produce evidence about her condition and how that relates to the accident in question. Accordingly, it is appropriate that expert evidence as to the medical implications of the Applicant’s condition be presented, as well as medical opinions about causation.

No evidence was available to allow me to determine what direct contact occurred between the garage door and the vehicle, or the interior of the vehicle and the Applicant.¹⁹ Without evidence, I am unable to make a finding that the Applicant’s head or any other part of her body made unexpected contact with any part of the vehicle as a result of the accident. I do not know where exactly the garage door hit the car, nor do I know if there was any contact with any part of the Applicant’s body. The delay in seeking medical treatment suggests that the Applicant was not that concerned about any injury at the time of the accident.

In this case, I note that no opinion evidence has been submitted to me that the Applicant’s injuries are outside of the definition of a “minor injury”. There are some suggestions in some of the OCF forms filed that this might be the case, but I was not presented with any clear opinion that this is the case.

The Schedule is clear:

“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury

No evidence has been presented to me that the Applicant has suffered anything other than a minor injury. Both of the health professionals testifying for the Insurer were of the view that the Applicant’s injuries were minor injuries. There was no contrary view presented.

From the facts, I have no doubt that the Applicant is currently in pain. What I do not know is what the cause of that pain is. The only medical evidence presented by the Applicant that suggests a cause is the Rothbart Centre Report that suggests her pain originates from a lumbar myofascial strain.

What is difficult to determine in the absence of additional medical evidence presented by the Applicant is how the lumbar myofascial strain noted relates to the motor vehicle accident. I understand the lumbar region to be the low back area. As reported by the Applicant, the motor vehicle accident involved her head or upper spine. Without medical evidence, I cannot draw the conclusion that somehow an accident involving the head can cause lumbar pain.

The alternate theory advanced by the Applicant’s representative of asymptomatic arthritis becoming symptomatic because of the accident suffers the same lack of evidence. Although the cross-examination of Dr. Alikhan did result in a hypothetical opinion that symptoms of arthritis might remain hidden until an accident, there is no evidence that this in fact is the case with the Applicant. To prevail on this theory, the Applicant would need to present clear evidence to this effect. I cannot presume that such evidence could be presented; it is incumbent on the Applicant through her representative to clearly bring this evidence to my attention.

The Applicant’s representative suggested to me in his opening and closing remarks that I could find the appropriate medical evidence to support the Applicant’s case in the documents and in the cross-examination of the Insurer’s medical experts. This has not been the case. There is a lack of medical evidence to support her case and, therefore, the Applicant cannot prevail on any of the issues in this matter.

She has suffered from strains and sprains; those are clearly included in the definition of a minor injury contained within the Schedule. Although she may be suffering from pain, there is no causal link established to that pain originating with the accident.

In dealing with the issues in dispute, I find that the Applicant’s injuries are predominantly minor as defined in the Schedule.

EXPENSES:

At the conclusion of the Hearing, I asked the parties the normal question concerning my making an expenses Order. The parties advised me that they had agreed that, no matter what the outcome, I should not award any expenses relating to the Hearing. Accordingly, I make no award of expenses.

April 24, 2017

Marcel D. Mongeon Arbitrator

Date