Neutral Citation: 2017 ONFSCDRS 129

FSCO A16-001401

BETWEEN:

MAVERICK SLEEP Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Deborah Anschell

Heard: In person at ADR Chambers on January 18 and 19, 2017 and by written submissions completed on February 21, 2017

Appearances: Mr. Maverick Sleep participated Mr. Robert Ford participated for Mr. Maverick Sleep Ms. Nina Plotnik participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Maverick Sleep, was injured in a motor vehicle accident on March 26, 2014 (“the accident”) 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 his 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:

Do Mr. Sleep’s injuries fall within the Minor Injury Guideline within the meaning of the Schedule?
Is either party entitled to its expenses in respect of the Arbitration?

Result:

Mr. Sleep’s injuries do not fall within the Minor Injury Guideline.
Aviva is required to pay Mr. Sleep’s expenses with respect to the Arbitration. If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

APPLICANT’S EVIDENCE AND SUBMISSIONS

Witness Mr. Maverick Sleep

The first witness was Mr. Sleep. Mr. Sleep testified that he was involved in the accident on March 26, 2014. He is 18 years old. At the time of the accident, Mr. Sleep was 15 years old, in Grade 10, and lived with his parents in Blackstock, Ontario. He graduated from high school on time, without taking any time off.

Currently, Mr. Sleep is studying Sports Media at Ryerson University. He participates in volunteer work for Rogers Television in Durham, Ontario. He also volunteers with the men’s and women’s hockey and basketball teams at Ryerson University. His career goal is to be an on-air television or radio journalist, or a producer.

With respect to his volunteer activities with Rogers Television, Mr. Sleep avoids heavy lifting, normally a part of this position. He has requested an accommodation in this regard.

Mr. Sleep had a lengthy history of playing amateur hockey. His evidence was that he has played hockey from the time that he could walk. In Blackstock, Mr. Sleep was a strong candidate for a Triple-A hockey team. However, he wasn’t able to participate in the Triple-A tryouts in the fall of 2014, because he experienced too much pain as a result of the accident. He had hoped to receive a hockey scholarship for university.

Mr. Sleep’s other athletic endeavour was weightlifting. He has lifted weights since he was nine years old. He continued to pursue this sport as a teenager, three or four times per week.

With respect to the accident, Mr. Sleep’s evidence was that he was a passenger in his father’s vehicle. His father had just picked him up from school. Another vehicle collided with the driver’s side of the vehicle that Mr. Sleep was travelling in.

Mr. Sleep began experiencing pain within a few days of the accident. He continues to experience constant low back pain. Mr. Sleep characterizes the pain as 8 or 9 out of 10 on a bad day. On a better day, the pain may drop to 4 out of 10. The pain is sharp; sometimes Mr. Sleep feels as though his legs are about to give out. He cannot stand for long periods of time.

Mr. Sleep commenced physiotherapy after the accident. He also uses a professional massage machine at home, and takes anti-inflammatory medication.

Mr. Sleep has participated in chiropractic treatments, massage therapy, and acupuncture. Typically, he attends those treatments once a month. He doesn’t attend more frequently because of financial constraints. These treatments have been funded through Mr. Sleep’s father’s benefit plan.

Mr. Sleep is no longer able to participate in weightlifting as frequently as prior to the accident. His evidence was also that he hasn’t played full contact hockey since the accident. In the year after the accident, he played non-contact hockey approximately twice per week. Since March 2016, he hasn’t played any hockey, with the exception of a pick-up shinny game that he played over the Christmas break in 2016 with his father.

Mr. Sleep also experiences disturbances with his sleep. He wakes up during the night from back pain.

Mr. Sleep gave evidence about his attendances with his Chiropractor, Dr. Goldhawk. She had suggested spinal decompression, and Mr. Sleep is interested in pursuing that form of treatment.

With respect to psychological difficulties, Mr. Sleep testified that in January 2016, he was diagnosed with depression. He first had some emotional problems when he was bullied several years ago in public school. He noticed that his depression increased after the accident. He first sought treatment for depression in January 2016 from a walk-in clinic, and was prescribed medication. After the initial diagnosis, the medication has been monitored and renewed by Mr. Sleep’s Family Physician, Dr. Tuck.

Currently, Mr. Sleep’s school program is going well. He has made new friends, and has achieved good grades. However, he finds that because of lack of sleep, it takes longer to record notes in class. He also experiences pain from sitting.

Mr. Sleep wears a back brace from time to time. He has experienced two other injuries since the accident in 2014. In October 2015, Mr. Sleep suffered from a concussion when he hit his head on a desk. He did not lose consciousness. In March 2016, while playing hockey, he lost his balance and collided with the boards. He felt better the next day.

In cross-examination, Mr. Sleep’s evidence was that he didn’t see his Family Doctor until 2 ½ months after the accident. He currently sees his Family Doctor once or twice per year.

Mr. Sleep hasn’t taken any prescription medication for his pain. He relies on non-prescription anti-inflammatory medication. He continues to take medication for depression.

Mr. Christopher Agaton, Kinesiologist and Dr. M.A. Goldhawk, Chiropractor (Report dated October 24, 2016)

Neither Mr. Agaton nor Dr. Goldhawk testified at the Hearing. However, their joint Functional Abilities Evaluation Report was introduced as a part of Exhibit 1.² They examined Mr. Sleep on October 24, 2016.

In their Report, they noted that Mr. Sleep is partially limited in his ability to perform housekeeping tasks. Further, he is partially limited in his ability to perform home maintenance tasks and recreational activities.³ Further, the Report noted that Mr. Sleep’s injuries are both serious and permanent. His MRI results show significant damage to his spine, at the age of 18.⁴

The Functional Abilities Evaluation stated as follows with respect to Mr. Sleep’s diagnosis:

In today’s examination, from a physical point of view, it appears that Mr. Sleep continues to suffer from significant and permanent post-traumatic injuries. He has a worsening lumbar spine myofascial injury with loss of function, strength and mobility. He also has residual cervicogenic pain. He has had MRI studies that confirm mild circumferential disc bulges at multiple levels with some degree of mild lateral recess stenosis and some degree of moderate left L5-S1 neural foraminal stenosis. The report also commented on some potential slight impingement of the exiting left L5 nerve root. He has a sleep arousal disorder, depression, anxiety and anger regarding his conditions, and has developed a chronic pain pattern.⁵

With respect to his prognosis, the Functional Abilities Evaluation stated that Mr. Sleep’s prognosis is very dim for a return to his pre-accident condition. He may develop early onset arthritis.

The Assessors stated that Mr. Sleep has lost all ability to play hockey and any other sport that requires physicality.⁶

The Assessors were asked if Mr. Sleep’s injuries fall within the Minor Injury Guideline. They replied as follows:

Mr. Sleep is well passed (sic) the Guidelines for a Minor Injury. He received physiotherapy and registered massage therapy after the accident as a result of the injuries sustained. This was covered by his accident benefits. His MRI results from 2016, also show that his injuries are significant and severe enough to remove him from the MIG.⁷

Dr. Ken T. Fern, Orthopaedic Surgeon (Report dated October 14, 2016)

Dr. Fern did not testify at the Hearing. However, his report was introduced as part of the Applicant’s Arbitration Brief.⁸

Dr. Fern is an Orthopaedic Surgeon, licensed to practice in Ontario, and a fellow of the Royal College of Physicians and Surgeons of Canada. His medical and orthopaedic surgical training were both completed at Queen’s University. Dr. Fern is currently in active practice in general orthopaedic surgery including trauma, adult joint reconstruction and arthroscopy, along with having a subspecialty in spinal surgery in Oshawa, Ontario through Lakeridge Health Corporation.

Dr. Fern examined Mr. Sleep on October 14, 2016. In his report, Dr. Fern opined that Mr. Sleep’s ongoing pain issues are likely related to damage done to the intervertebral discs and facet joint structures in his lower back as well as the myofascial tissues. Dr. Fern stated that Mr. Sleep has developed chronic mechanical problems with regard to his back and a chronic pain disorder.⁹

Dr. Fern stated as follows with respect to the MRI Report:

An MRI scan that was completed does document mild circumferential disc bulges at multiple levels with some degree of mild lateral recess stenosis and some degree of moderate left L5-S1 neural foraminal stenosis. The report commented on some potential slight impingement of the exiting left L5 nerve root. At this time he does not describe any left leg radicular symptoms and his examination does not document any signs of an active radiculopathy. His ongoing pain is likely related though to the pathology of the intervertebral discs and facet joint structures. He would be a candidate for further of his pains.¹⁰

Dr. Fern also noted that there is a causal relationship between the injuries that Mr. Sleep sustained on March 26, 2014 and his current degree of impairment and disability.¹¹

With respect to whether Mr. Sleep’s injuries are minor, Dr. Fern noted as follows:

I would consider Mr. Sleep’s mechanism of injury resulted in sprain and strain and myofascial type injuries initially to the neck and back. However, I note that he has developed chronic pain problems with his areas of injury and has now transitioned in having chronic mechanical pains to his neck and back. His problems would not be considered minor given the chronicity of his symptoms. I would consider his ongoing problems to be related to mechanical problems that have now developed with regard to his intervertebral discs and facet joint structures. As such, I would consider his ongoing problems that have developed as a result of his accident of March 26, 2014 are such that it would place him outside of a minor injury. I would consider his current problems to place him outside of Minor Injury Guideline.¹²

Submissions of Mr. Robert Ford, Counsel for the Applicant

Mr. Ford, in his submissions, argued that Mr. Sleep is a hardworking, intelligent and diligent young man. Prior to the accident, he enjoyed playing competitive contact hockey and weightlifting.

After the accident, Mr. Sleep began experiencing back pain. His current issue is chronic pain in his lower back. The pain is exacerbated with activity. Mr. Sleep’s sleep is interrupted regularly as he is frequently awoken in the night due to pain.

Following the accident, Mr. Sleep had to give up playing competitive hockey. He was unable to finish the rest of the 2014-2015 season with his competitive team. He returned to house league, non-contact hockey, for the 2015-2016 season, but ultimately gave up playing hockey entirely following that season.

Before the accident, both hockey and weightlifting were major parts of Mr. Sleep’s life. Mr. Sleep’s injuries ultimately prevented him from continuing in competitive hockey.

Mr. Ford submitted that Mr. Sleep began receiving treatment for his physical injuries immediately after the accident. He has diligently tried a number of treatment options in an attempt to recover from his accident related injuries including physiotherapy, chiropractic treatment, acupuncture and massage therapy.

Mr. Ford relied on the Functional Abilities Evaluation Report and the Orthopaedic Report to support his position that Mr. Sleep’s injuries fall outside of the Minor Injury Guideline. Both of these reports indicated that Mr. Sleep’s spine was damaged as a result of the accident.

Mr. Ford argued that Mr. Sleep’s lower back pain did not commence until after the accident. Further, his injuries are sufficient to take him outside of the Minor Injury Guideline whether his lower back pain is considered chronic pain or a chronic pain disorder.

AVIVA’S EVIDENCE AND SUBMISSIONS

Evidence of Dr. Dinesh Kumbhare

Dr. Kumbhare testified for Aviva. Dr. Kumbhare has been in practice for almost 25 years. He obtained his medical degree from Dalhousie University in 1987, and is a Fellow of the Royal College of Physician and Surgeons of Canada, with a specialty practice in Physiatry.

Dr. Kumbhare conducted an assessment of Mr. Sleep on June 21, 2016 and his report is dated July 6, 2016.¹³ At the time of the assessment, Mr. Sleep complained of low back pain. Mr. Sleep stated that his pain would worsen if he bent or twisted.

Dr. Kumbhare noted that Mr. Sleep could move quite well and free of pain, except for at the end of bending forward. Dr. Kumbhare noted that Mr. Sleep experienced pain to touch in the iliac crest area. He experienced pain when doing a sit up, and a reverse sit up. The movement of the hips was normal, full, and without pain. Dr. Kumbhare concluded that Mr. Sleep had sustained soft tissue injuries, and was suffering from lumbar strain.

Dr. Kumbhare reviewed the MRI Report of May 12, 2016 and noted that in his opinion, the conditions described were not caused by the accident in March 2014, but were degenerative in nature.

Dr. Kumbhare’s evidence was that the disc bulge reflected on the MRI is not an abnormality. It is a normal occurrence in a disc. He testified that a decade long competitive hockey participation could potentially result in developing the condition captured on Mr. Sleep’s MRI. None of Dr. Kumbhare’s findings would support a chronic pain disorder diagnosis.

Evidence of Dr. Esmat Dessouki

Dr. Dessouki testified for Aviva. Dr. Dessouki is an Orthopaedic Surgeon. He graduated from Cairo University in Egypt, and came to Canada in the late 70s. He did his orthopaedic residency in Saskatchewan, followed by two fellowships in Toronto. He is an adjunct assistant professor with Queen’s University.

Dr. Dessouki assessed Mr. Sleep on November 25, 2014. At that time, Mr. Sleep’s major complaint was upper and lower back pain. Dr. Dessouki concluded that based upon his examination, Mr. Sleep sustained a thoracic lumbosacral strain of his back. Dr. Dessouki concluded that it was a minor injury.

Dr. Dessouki’s evidence was that on the date of the assessment, Mr. Sleep was almost normal. He looked perfectly healthy, and did not have any major issues. Dr. Dessouki stated that a history of a decade of long, intensive hockey participation would likely cause degenerative changes in the back.

Dr. Dessouki was questioned about Dr. Fern’s more recent findings. Dr. Dessouki stated that Dr. Fern’s examination did not support his conclusion. Furthermore, Dr. Dessouki stated that Mr. Sleep did not exhibit chronic pain. A person suffering from chronic pain would have severe restrictions of his movement, with severe muscle spasm. Mr. Sleep did not exhibit these symptoms. Dr. Dessouki’s position was that Mr. Sleep’s injuries fall within the Minor Injury Guideline.

Dr. James Tuck, Applicant’s Family Doctor

Dr. Tuck did not testify, but Ms. Plotnik introduced portions of Dr. Tuck’s clinical notes and records from April 18, 2013 to June 27, 2016. Ms. Plotnik referenced the entry made on June 5, 2014, Dr. Tuck’s first note after the accident.¹⁴ On that date, Mr. Sleep was seen by Dr. Ankelly Armstrong at the same clinic. The note stated that Mr. Sleep had not been seen by a GP regarding the accident. The note also stated: “Spoke with the Physiotherapist Associates ….does intermittently resolve at times”.

Ms. Plotnik also referenced the entry from June 25, 2015.¹⁵ In this note, Dr. Tuck noted that there was good range of motion in the back with some pain, and no radiation pain. Dr. Tuck noted that it appears to be mechanical back pain.

Ms. Plotnik next referenced the entry from February 3, 2016.¹⁶ This note referenced one prior visit in 2015 for lower back pain. Dr. Tuck noted that Mr. Sleep was referred to physiotherapy, but did not attend.

The next entry referred to by Ms. Plotnik is the note made on February 18, 2016.¹⁷ In this record, Dr. Tuck stated that Mr. Sleep’s injury appears to be a minor injury and he should have no major ongoing health complications from this.

The next note, dated February 29, 2016,¹⁸ discusses Mr. Sleep’s psychological complaints. The final note referenced by Ms. Plotnik is dated March 29, 2016,¹⁹ and mentioned Mr. Sleep’s fall while playing hockey.

Submissions of Ms. Nina Plotnik, Counsel for Aviva

Ms. Plotnik argued that Mr. Sleep’s injuries come within the definition of a “minor injury” in section 3 of the Schedule, which includes the following:

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.

Dr. Dessouki’s evidence was that for a chronic pain disorder diagnosis to be valid, there has to be a physical component. Dr. Kumbhare explained that the physical component is comprised of constant pain at a disability level.

Ms. Plotnik submitted that Mr. Sleep’s pain is not constant. It flares up. Furthermore, in the view of both Dr. Dessouki and Dr. Kumbhare, the MRI results were not necessarily caused by the accident. The degenerative changes were likely caused by the decade long intensive participation in competitive hockey that resulted in the wear and tear on Mr. Sleep’s body.

Ms. Plotnik argued that there was no compelling medical evidence to substantiate removing Mr. Sleep from the Minor Injury Guideline. There are no clinical notes and records demonstrating repeat visits with complaints of ongoing pain.

Dr. Kumbhare’s and Dr. Dessouki’s testimonies were credible, relevant and highly informative. Ms. Plotnik submitted that they both discussed the lack of causation between the accident and the findings in the MRI. They both confirmed the diagnosis of a lumbar strain and reaffirmed their conclusion that Mr. Sleep’s injuries fall within the Minor Injury Guideline in light of all the information that became available subsequent to their assessment.

Ms. Plotnik, in her written submissions, relied on Maryam and State Farm.²⁰ In this case, Arbitrator Savage summarized the established jurisprudence on the test to apply in determining whether impairments fall within the Minor Injury Guideline by referring to the “predominantly minor” nature of the impairment, and not simply considering whether any particular injury is a minor injury.

Ms. Plotnik also referenced Scarlett v. Belair²¹ to argue that the burden of proof rests with the Applicant to establish entitlement to the appropriate level of benefits. In order to be removed from the Minor Injury Guideline, Mr. Sleep must demonstrate one of the following:

that he suffered from a pre-existing medical condition that would prevent him from achieving maximal recovery under the Minor Injury Guideline; or
that he sustained an injury that is not predominantly minor or the sequelae of a minor injury as a result of the subject accident.

Ms. Plotnik submitted that all of the assessment reports that were entered into evidence confirm that there was no pre-existing medical condition for any accident-related impairment. Both of her expert witnesses, Dr. Dessouki and Dr. Kumbhare, diagnosed Mr. Sleep with a lumbar strain. Dr. Dessouki also diagnosed Mr. Sleep with a thoracic strain. Both of these experts maintained their conclusion that Mr. Sleep sustained a predominantly minor injury. Aviva’s experts disagreed with Dr. Fern that Mr. Sleep’s back pain was likely related to the MRI findings because the back pain was not substantiated by objective clinical findings of a functional spinal range of motion.

Ms. Plotnik argued that Aviva’s experts should be preferred to Mr. Sleep’s, in particular with respect to the Functional Assessment Evaluation completed by Dr. Goldhawk, Chiropractor and Mr. Agaton, Kinesiologist. She pointed out that neither of these two assessors were medical doctors, and thus their scope of expertise is limited when compared to Aviva’s two experts, Dr. Dessouki, Orthopaedic Surgeon and Dr. Kumbhare, Physiatrist.

Ms. Plotnik also submitted that the clinical notes and records of Mr. Sleep’s Family Physician do not show contemporaneous accounts of ongoing pain. On the contrary, Dr. Tuck documented the minor nature of Mr. Sleep’s injuries in his clinical notes of February 3 and 18, 2016. Dr. Tuck did not refer Mr. Sleep to a Psychologist or Psychiatrist.

Finally, Ms. Plotnik submitted that Mr. Sleep had not satisfied his burden of proof in establishing, on a balance of probabilities, that his injuries are not predominantly minor. He also did not provide compelling evidence that pre-existing injuries would prevent him from achieving maximal medical recovery.

ANALYSIS

The only issue to be determined in this Hearing is whether or not Mr. Sleep’s injuries sustained in the accident come within the Minor Injury Guideline.

Mr. Sleep has submitted that he suffered back injuries that have become chronic in nature. His position is that the back pain takes him out of the Minor Injury Guideline.

I agree with Ms. Plotnik that there is no pre-existing condition established such that if the $3,500.00 limit was applied, Mr. Sleep could not achieve maximal medical recovery.

I am also mindful of the fact that Mr. Sleep has not received any psychological or psychiatric treatment, although he is taking medication for depression, originally prescribed by a Family Physician at a walk-in clinic. There was no medical evidence introduced at the Hearing from any treating Psychologist or Psychiatrist. Mr. Sleep’s single complaint to a Physician with respect to depression is not sufficient to remove him from the Minor Injury Guideline.

This leaves for consideration the issue of chronic pain. Mr. Sleep’s position is that his back pain has resulted in a chronic pain syndrome, sufficient to remove him from the Minor Injury Guideline. The burden of proof rests with Mr. Sleep to establish his entitlement to benefits beyond the level established for an impairment that is predominantly a minor injury.²²

In deciding this issue, I am faced with conflicting medical evidence. We have the Functional Abilities Evaluation Report authored by Mr. Agaton and Dr. Goldhawk that supports removing Mr. Sleep from the Minor Injury Guideline. This same conclusion was reached by Dr. Fern, Orthopaedic Surgeon. None of these medical professionals were in attendance at the Hearing.

In the Functional Abilities Evaluation Report, the two assessors concluded that Mr. Sleep had impairments in his range of motion, particularly with extension and lateral bending. He experiences pain at the extreme of his range of motion.²³ These two assessors also note that the MRI results are significant and severe enough to remove him from the Minor Injury Guideline.²⁴

On the other hand, we have the written reports and oral testimony of Drs. Kumbhare and Dessouki for Aviva, that support a finding that Mr. Sleep’s injuries are minor in nature.

It is particularly difficult to reconcile the opinions of the two Orthopaedic Surgeons, Dr. Fern and Dr. Dessouki. Dr. Fern stated that Mr. Sleep has developed chronic mechanical problems with regard to his back. He stated that Mr. Sleep has developed a chronic pain disorder. He suggested that a trial of nerve block injections would be reasonable, as well as other potential treatment modalities. Dr. Fern opined that Mr. Sleep’s problems would not be considered minor given the chronicity of his symptoms.

On the other hand, Aviva’s Orthopaedic Surgeon, Dr. Dessouki, came to the opposite conclusion. He found that Mr. Sleep was suffering from thoracic strain and lumbar strain.

In addition to the expert reports, we also have Mr. Sleep’s evidence. I found him to be a credible and straightforward young man, and accept his evidence with respect to his symptoms. I also accept his evidence with respect to his functional limitations. He is no longer able to participate today in his two favourite athletic pursuits, hockey and weightlifting, to the same extent that he did pre-accident.

I did not find inconsistencies between the evidence that he presented at the Hearing, and the information that he provided to the various assessors. He maintained that he began experiencing back pain within a few days of the accident. He continues to feel a constant sharp pain in his lower back. The pain has become worse since the accident. He is desirous of obtaining further treatment. Further treatment is recommended by both Dr. Fern and Dr. Goldhawk.

I find that Dr. Fern’s report and opinion with respect to the chronic pain disorder is consistent with Mr. Sleep’s evidence of ongoing sharp back pain. It is also consistent with the findings on the MRI report. In this sense, I am satisfied that Mr. Sleep’s ongoing sharp back pain does not constitute a “minor injury” as defined in s. 3(1) of the Schedule. A chronic pain diagnosis a few years post-accident establishes a severity beyond that contemplated by the Minor Injury Guideline.

On the basis of this evidence, I find that Mr. Sleep has met his onus of establishing, on a balance of probabilities, that he sustained an injury that is not predominantly minor.

EXPENSES:

Mr. Sleep is entitled to his reasonable expenses of this Arbitration. If the parties are unable to agree on the quantum of expenses in this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 1, 2017

Deborah Anschell Arbitrator

Date

Financial Services Commission of Ontario