A. P. v. Aviva Canada Insurance Company, 2016 CanLII 60728

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: September 1, 2016

Tribunal File Number: 16-000045/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

A. P.

Applicant

and

Aviva Canada

Insurance Company

REASONS FOR DECISION

Order made by: D. Gregory Flude, Vice-Chair

Date of Order: May 30, 2016

Hearing in Writing

Overview

1The Applicant, A. P., was injured in a motor vehicle accident on March 19, 2015. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”) including medical and Income Replacement Benefits (IRB).

2Aviva terminated her IRB on February 16, 2016 taking the position that she did not meet the test for entitlement. She disputes that termination and argues that she should be paid IRB from February 17 to May 3, 2016 when she started part-time work.

3Aviva also denied A. P.’s claim for medical benefits for physiotherapy and chiropractic treatment. The dispute over the medical benefit centres on the nature and extent of her injuries. A. P. submits that her injuries are extensive and that she is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to s. 18(3) of the Schedule. Aviva takes the position that her injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The $3,500 having been exhausted, Aviva takes the position that it has no further liability to A. P.. The resolution of this matter depends on the sufficiency of the medical evidence put forward by A. P. in support of her position.

Issues:

4The following are the issues in dispute:

1. Did A. P. suffer predominantly minor injuries in the March 19, 2015 motor vehicle accident?

2. If the answer to question 1. above is no,

a. Is Aviva liable to pay the following medical benefits:

i. $1,133.73 for a Physiotherapy Treatment and Assessment Plan dated June 17, 2015, and

ii. $32.87 for the balance of a Chiropractic Treatment and Assessment Plan dated June 17, 2015.

3. Is A. P. entitled to the payment of IRB at the rate of $382.55 per week for the period from February 17, 2016 to May 3, 2016?

Result:

5I find on all of the evidence that:

1. A. P. suffered predominantly minor injuries. There is no compelling evidence of a pre-existing medical condition preventing A. P. from recovering within the minor injury treatment cost limits, and

2. A. P. is not entitled to the payment of IRB for the period from February 17, 2016 to May 3, 2016.

The Minor Injury Issue:

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of soft tissue injuries. The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. I will refer to these terms collectively as “soft tissue injuries”. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.

7Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8In a recent decision, Scarlett v Belair Insurance, 2015 ONSC 3635 (“Scarlett”), the Divisional Court reviewed the minor injury provisions in the Schedule. At issue in Scarlett was whether the minor injury provisions acted as an exclusion from the coverage provided by the Schedule or whether it acted as a limit on liability. The resolution of this issue would define which party – the insurer or the claimant respectively – carried the onus of proof. The Court in Scarlett held that the provisions were a limit on liability, not an exclusion, and the claimant carries the onus of proof. Applying the decision in Scarlett, A. P. carries the onus of establishing her entitlement to a higher level of coverage than the $3,500 for minor injuries.

9The evidence provided by both parties at the hearing was documentary. I have considered all of the documents submitted by each party. The documents disclose that after her accident, A. P. reported a finger contusion, sprain and strain of the fingers and “whiplash associated disorder (WAD2) with complaint of neck pain and musculoskeletal signs.” Her treating physiotherapist, Nancy Karas, submitted a Treatment Confirmation Plan form (OCF 23) dated April 13, 2015. This form is used initially for injuries that fall within the MIG, and provides quick access to the $3,500 in funds without the need for prior approval by the insurer. In the OCF-23, Ms. Karas confirmed that A. P. ’s injuries fell within the MIG and further radiological procedures in April confirmed that there were no fractures.

10A. P. ’s family doctor, Dr. Honsl, referred her to Dr. Alex McKee, MD, FRCPC during the fall of 2015. Dr. McKee saw A. P. on October 20, 2015. His report notes pain in the cervical spine and concludes, “A. P. does have evidence of cervical facet joint involvement which has been established as a common contributor to chronic pain symptoms…” The term “cervical facet joint involvement” is not explained further. In the absence of a further explanation, I have no evidence to suggest that the Applicant’s injuries are more than soft tissue injuries that fall within the MIG. Dr. McKee recommends extensive further treatment with “a high level manual physical therapist with skill in intramuscular stimulation…”

11On March 23, 2016, A. P. had injections into the C2/3 and C3/4 facets joints in an attempt to assist with pain management. She saw Dr. McKee on April 27, 2016 who reported to Dr. Honsl that the injections proved ineffective. He restated his desire for A. P. to see a physical therapist. By this time, a year post accident, it appears that A. P. had exhausted the MIG limit of $3,500.00. To secure funding for the further treatment her injuries would need to fall outside the MIG.

12For the hearing Dr. McKee prepared a Medical Legal Report dated July 5, 2016 in which he reiterates his finding that A. P. has “cervical facet joint involvement.” Again, he does not define that term or explain why it might lift A. P.’s injuries out of the minor injury definition, instead stating, “These are not minor injuries and should never have been included in the Minor Injury Guideline, in my opinion.” A. P. submits that this statement should be read as a diagnosis that A. P.’s injuries are not minor injuries. Aviva submits that the plain and obvious meaning of the Dr. McKee’s statement indicates that he recognizes that A. P.’s injuries fall within the MIG but, as a matter of policy, they should not. I accept the submission of Aviva and find that a fair reading of Dr. McKee’s statement shows they are Dr. McKee’s views on the policy of including injuries such as A. P.’s within the MIG. In other words, Dr. McKee’s report confirms that A. P.’s injuries are soft tissue injuries within the MIG.

13On June 17, 2016, Ms. Karas submitted two Treatment and Assessment Forms (OCF-18). The OCF-18 form is used to seek insurer approval for treatment of injuries that fall outside of the MIG. The two forms do not identify any change in the Applicant’s diagnosis. Ms. Karas identified treatment goals of pain reduction, increase range of motion, and a return to activities of daily living. The June 17, 2016 OCF-18 stated that A. P. was having difficulty with grasping and holding objects, and that her “neck tightness interferes with household chores and leisure activities.” In the first OCF 18 Ms. Karas indicates that A. P.’s injuries fall within the MIG, while in the second she indicates that they do not. There are no other documents submitted to the Tribunal indicating that A. P.’s medical diagnosis had changed in the period before these forms were submitted to Aviva.

14Having reviewed all of the evidence concerning A. P.’s injuries, I can find no evidence that she incurred anything other than soft tissue injuries. However, this is not the end of the enquiry.

15I must now consider two questions. As set out in paragraph 7 above, I must first determine if is there compelling evidence that A. P. suffered from a pre-existing condition, documented by a healthcare practitioner before the accident, preventing her from achieving maximal recovery if subjected to the $3,500 limit? Second, A. P.’s submits that her condition has worsened to such a degree that she now suffers from Chronic Pain Syndrome. If I accept that submission, does that condition take her beyond the minor injury definition?

Is There Evidence of Pre-Existing Medical Condition?

16There is evidence that A. P. was involved in a motor vehicle accident in 2005 in which she suffered similar cervical spine injuries. Dr. McKee refers to his treatment of her following those injuries and identifies it as “Another possible factor…” He declines to express an opinion on the impact of the earlier injuries on A. P.’s recovery, however, stating, “The presence of a pre-existing condition, antecedent to the motor vehicle accident in March 2015, would be better commented on by Dr. Honsl.” The Tribunal has no report from Dr. Honsl commenting on the impact of a pre-existing condition on the A. P. ’s ability to recover. Based on the evidence before me, I conclude that A. P. has failed to satisfy her onus to show there is compelling evidence that she cannot achieve maximal recovery within the MIG because of a pre-existing medical condition.

Does A. P. Suffer from Chronic Pain Syndrome?

17A. P. takes the position that she suffers from Chronic Pain Syndrome and therefore falls outside the MIG notwithstanding that her initial injuries were soft tissue injuries. There is no medical evidence to support A. P.’s claim that she is suffering from Chronic Pain Syndrome. The term “chronic pain” is used in Dr. McKee’s October 20, 2015 report to Dr. Honsl. He had examined A. P., and concluded that she had “cervical facet joint involvement.” He then opined that cervical facet joint involvement is a common contributor to chronic pain symptoms. Nowhere in the report does he state that A. P. suffers from chronic pain nor does he diagnose A. P. as having Chronic Pain Syndrome. His later reference to chronic pain in his July 5, 2016 report for use at the hearing is not based on a new examination of A. P.. The July 2016 report simply restates his October 2015 opinion of the relationship between cervical facet joint involvement and chronic pain. Considering the whole of the documentary evidence before me, there is insufficient evidence to support a finding that A. P. suffers from Chronic Pain Syndrome.

18The Applicant submitted two recent arbitration decisions finding that persons suffering from chronic pain syndrome fall outside of the MIG notwithstanding that their initial injuries were soft tissue injuries: Arruda v. Western Assurance Company A13-003926 (FSCO) (“Arruda”) released on July 7, 2015 and Ali and Ferozuddin v. Certas Direct Insurance Company A-13-002459 and A13-002460 (FSCO) (“Ali”) released on March 23, 2016. Arruda references a decision of Arbitrator Feldman in Basson and Royal Sunalliance Company of Canada A13-005199 (FSCO) (“Basson”) released on May 7, 2015. I would note in general that decisions from the Financial Services Commission of Ontario decisions are not in any way binding on the License Appeal Tribunal’s adjudication of automobile accident disputes. In this matter, however, given my finding above that there is insufficient evidence that A. P. suffers from Chronic Pain Syndrome, there is no need to consider this issue.

Income Replacement Benefits:

19The test for entitlement to payment of IRB is set out in s. 5(1) of the Schedule. In A. P. ’s case, s. 5(1) provides that she is entitled to IRB if, as a result of the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment as a medical secretary. Dr. Honsl, A. P.’s family doctor, submitted a Disability Certificate (OCF-3) dated September 9, 2015 and ticked the box to say that, for a period in excess of the next 12 weeks, A. P. was incapable of performing her job. Based on the OCF-3 Aviva began payment of the IRB and continued until February 16, 2016 when it stopped payment following receipt of a Multidisciplinary Insurer’s Examination (IE) report dated January 21, 2016. Other than the September 9, 2015 OCF-3 stating that she was unable to perform the essential tasks of her employment for a period in excess of 12 weeks, A. P. led no further evidence about her inability to work.

20In December 2015 and January 2016, A. P. attended the IE assessment. Keith Welch, a Registered Occupational Therapist, examined her on December 15, 2015. After testing A. P. for in excess of two and a half hours, Mr. Welch concluded that she could carry out “sedentary work.” His report details the specifics of each test together with his findings and reasons for his conclusions.

21On January 8, 2016, Dr. Stephen Mussett, an orthopaedic surgeon, examined A. P. . He noted that A. P. was still suffering pain as a result of the accident but concluded that she did not suffer a substantial inability to return to her pre-accident duties as a medical secretary. Dr. Mussett’s report also details the scope of his examination and notes the results of each phase of the examination and the reasons for his conclusions.

22A. P. submits that I should accept Dr. Honsl’s determination over the determination of Aviva’s assessors. Aviva submits that Dr. Honsl simply ticked a box and has provided no further support for her methodology or conclusions. Aviva’s assessors, on the other hand, have provided a detailed report on both their methodology and their conclusions that is unchallenged by anything submitted by A. P.. I prefer Aviva’s submissions. The evidence currently before me overwhelmingly supports the conclusion that A. P. was able to perform the essential tasks of her employment by February 16, 2016 when the IRB payment was stopped.

Conclusion:

23In light of the foregoing, I find that:

1. A. P. suffered predominantly minor injuries and there is no compelling evidence of a pre-existing medical condition that would prevent recovery beyond the $3,500 cap for medical and rehabilitation benefits, and

2. A. P. is not entitled to the payment of IRB for the period from February 17, 2016 to May 3, 2016.