17-002240 v Aviva Insurance, 2017 CanLII 70685

Licence Appeal Tribunal

Date: 2017-10-18 Tribunal File Number: 17-002240/AABS Case Name: 17-002240 v Aviva Insurance

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

Between:

17-002240 Applicant

and

Aviva Insurance Respondent

DECISION

ADJUDICATOR: Avvy Go

APPEARANCES:

For the Applicant: Marcello Novello, counsel For the Respondent: Monica Pathak, counsel

Hearing in Writing: August 3, 2017

Overview

1The applicant, [ ], was injured in a motor vehicle accident (the “accident”) on October 23, 2014. He has applied to the Licence Appeal Tribunal (the “Tribunal”) for the resolution of a dispute with the respondent insurance company over his entitlement to statutory accident benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

2The dispute before me concerns the respondent’s denial of the applicant’s claim for a non-earner benefit and a number of medical and assessment benefits. The medical and assessment benefits were denied on the basis that the claimant’s injures fell within the Minor Injury Guideline (“MIG”).

3The hearing was in written format. The applicant submitted medical documents as well as written submissions. No witness affidavits were submitted. The respondent submitted written submissions with respect to the onus of proof as required of the applicant and the sufficiency of the evidence in meeting that onus.

4While he was given the opportunity to do so, the applicant did not submit any reply to the respondent’s written submissions.

5After considering the parties’ submissions, I conclude that the applicant is not entitled to a non-earner benefit and that his injuries do fall within the MIG, and, therefore, the respondent’s denial of those benefits was proper.

Issues

6At the case conference held on June 8, 2017 and June 23, 2017, the following issues were found to remain in dispute in this matter:

a) Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from April 23, 2014 to date and ongoing, denied by the respondent on April 10, 2015?

b) Is the applicant entitled to payment in the amount of $626 ($1,926.00 less $1300.00 previously approved) for chiropractic services set out in a treatment plan dated March 30, 2015 by MacKenzie Medical, denied by the respondent on April 14, 2015?

c) Is the applicant entitled to payment in the amount of $1,995.33 for a psychological assessment as set out in a treatment and assessment plan dated March 15, 2017 by Dr. Marco Chiodo, denied by the respondent on April 5, 2017?

d) Is the applicant entitled to interest for the overdue payment of benefits?

7I find that:

a) The applicant suffered predominantly minor injuries and thus is subject to the $3,500 treatment limit in s. 18 under the Schedule;¹

b) The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from April 23, 2014 to date and ongoing;

c) The applicant is not entitled to the amount of $626 for chiropractic services;

d) The applicant is not entitled to payment in the amount of $1,995.33 for a psychological assessment as set out in a treatment and assessment plan dated March 15, 2017 by Dr. Marco Chiodo; and

e) As such, no interest is payable.

Facts

8On October 23, 2014, the applicant was involved in an MVA when a car suddenly pulled out and hit the back passenger side of his vehicle. Following the accident, the applicant drove his vehicle to the police station and self-reported the collision.

9At the time of the accident, the applicant was retired. He exited the workforce in around 1993 or 1994 after sustaining a concussion.

10About four days after the accident, the applicant attended at his family physician’s office, but did not mention the accident to his physician nor report any injuries or pain. The first time the applicant mentioned the accident to his family physician was on November 13, 2014. The applicant first sought medical treatment for injuries stemming from the accident on November 12, 2014 when he attended at a physiotherapy clinic. Dr. Eaton, a chiropractor, completed an OCF-3 on the applicant’s behalf.

11On May 28, 2015, the applicant advised for the first time that he may have sustained a loss of consciousness in the accident, when he was assessed by neurologist Dr. Veidlinger.

Analysis

Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

Definition of MIG and burden of proof

12The respondent’s main reason for denying the benefits claimed by the applicant is based on its assessment that the applicant’s injuries fall within the MIG. I note that while the issue of the MIG was not formally listed as an issue in the case conference order, the parties fully addressed it in their submissions. I will begin my analysis of the applicant’s injuries and whether they fall under the MIG.

13The 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 all defined in s. 3, collectively referred as “soft tissue injuries” in this decision. S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

Are the injuries predominantly “minor injuries”?

14The applicant has the burden of proving that his injuries fall outside of the minor injuries guideline and are not subject to the $3,500 treatment limit in s. 18 of the Schedule. Specifically, the applicant has the burden of showing that the injuries are not minor injuries as defined by the Schedule, commonly known as “soft tissue injuries”.

15I began by examining the injuries sustained by the applicant as a result of the accident. I note that the injuries as described in these medical reports, including those submitted by the applicant, can by and large be described as sprain and strain and other “soft tissue injuries”. These injuries include injury of muscle and tendon at neck level; dislocations, sprain, strain of joints and ligaments of thorax, lumbar spine, pelvis, sacroiliac joint.² The applicant’s long-standing family physician also documented soft tissue injuries to the neck and headache pain.

16Based on the medical evidence before me, I conclude therefore that the applicant suffered “soft tissue injuries” from the accident.

17I then consider whether the applicant has any pre-existing conditions that may take him out of the MIG guidelines. I find there is contradictory evidence in this regard.

18On the one hand, the evidence before me indicates that the applicant had a concussion in 1993 or 1994, and a heart attack about nine years prior. At the time of the accident, the applicant had intermittent back pain, and that he suffered from hypertension and headaches. The applicant also had age-related degenerative changes to his neck. An ultrasound on December 9, 2017 showed “mild to moderate lower cervical spondylosis”. The IE report by physiatrist Dr. H. Hosseini diagnosed the applicant with cervicogenic headaches, in addition to sprain/strain of the cervical spine, thoracic spine and right lumbar spine.

19On the other hand, an MRI scan dated January 17, 2014, showed brain atrophy related to aging but this scan was otherwise unremarkable. As well, Dr. Gelman noted in his IE report dated April 8, 2015 that from a physical perspective, the applicant’s diagnostic imaging “does reveal evidence of some pre-existing degenerative changes in his spine and shoulder.” However, Dr. Gelman also opined that “it does not appear that these were significantly affected by the accident in question”. Further, Dr. Hosseini’s IE report dated December 24, 2014 did not note any clinical finding of radiculopathy, and the discharge report from York Physiotherapy & Rehabilitation Centre dated October 9, 2015 also made no mention of any radiculopathy. Given that the burden falls on the applicant to prove that his injuries do not fall under MIG, I find that while there is evidence of pre-existing conditions, the applicant has not proven that these pre-existing conditions will prevent him from achieving maximal recovery if benefits are limited to the MIG cap. The applicant did not focus on pre-existing conditions with respect to the MIG issue. His emphasis in this hearing is on the chronic pain, and he argued that because of chronic pain, he should be taken out of MIG.

20The applicant underwent a Chronic Pain Assessment on March 14, 2017 by Dr. Jacobs. The report was based mostly on the applicant’s self-report. The applicant reported that he suffers from headaches that are different from the type of headaches that he had prior to the accident, which are related to his neck pain. The applicant also described that he has neck pain which is mostly present with physical activities like lifting and moving his head.

21Dr. Jacobs did a neurological examination of the applicant and found the result to be within normal limits. He also did a cervical spine examination and found there was full range of motion of his neck in flexion and extension, although side bending to the right was markedly reduced as well as side bending to the left was markedly reduced. Dr. Jacobs then concluded that the applicant suffers from chronic neck pain.

22I note that Dr. Jacobs’ report stated that when he examined the applicant, he was not provided with his medical file. I also note that the finding of Dr. Jacobs contradicts with other medical findings. For instance, Dr. Gelman noted in his IE assessment that the applicant reported neck pain but reported no discomfort with any neck movements, and that while the applicant reported significant ongoing limitations, objectively there were no significant findings to correlate with this self-report. Dr. Hosseini, another IE, who examined the applicant’s neck and back, noted a straight leg raise of the low back was negative (i.e. no complaint of pain) and there were no complaints of radicular neck pain.

23Other than Dr. Jacobs, there does not appear to be any other medical report supporting a chronic pain diagnosis.

24Based on all of the above, I find that the applicant’s injuries as indicated in the medical reports are predominantly minor injuries. With that, I will now examine the issues that remain in dispute between the parties.

Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from April 23, 2014 to date and ongoing?

25The applicant submits that his life has changed since the accident and he should be entitled to a non-earner benefit (NEB) as he suffers a complete inability to carry on his normal life. For the reasons set out below, I find insufficient evidence to support the applicant’s claim for a NEB.

26Section 12 of the Schedule requires the insurer to pay a non-earner benefit to an insured person if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, and does not qualify for an income replacement benefit.

27The leading case with respect to proving entitlement to a non-earner benefit establishes that a claimant must be able to prove that he or she has been continuously presented from engaging in “substantially all” activities in which they engaged in before the accident. In order to do this, one must look at the applicant’s pre and post-accident activities over a reasonable period of time before the accident.³

28While the applicant submits he has a complete inability to carry on a normal life, the evidence does not support that claim.

29The applicant stated that prior to the accident, he used to share housekeeping tasks with his wife, but since the accident, he has a lot of difficulty doing any housekeeping chores. He also has difficulty sleeping due to his pain and wakes up in the morning with stiffness. However, the applicant reported during the IE assessment with the OT⁴ that he is able to complete the majority of pre-accident housekeeping tasks when he is feeling well.

The applicant also submitted that he suffers from chronic pain and as a result he has a complete inability to carry on with normal life. The applicant relied on the report from Dr. Jacobs for the diagnosis of chronic pain, as noted above. The applicant reported to Dr. Jacobs that he was able to do some activities for his daily living but it was painful if he had to do it persistently. He could not do any cooking, lifting or cleaning the house. As stated above, with respect to the issue of pain, Dr. Jacobs’ finding was based on the applicant’s self-reporting.

30As the respondent has pointed out, which I accept, there are a number of other medical reports including the report by Psychologist Dr. Rockman, Dr. Gelman, Occupational Therapist J. Harding, a further addendum report by Dr. Gelman dated June 1, 2017, and IE reports by Dr. Gelman and Dr. Rockman dated July 21, 2017, which all document that the applicant does not suffer a complete inability from carry on a normal life, and his pre-accident versus post-accident ingestion of medications had not changed.

31For instance, Dr. Gelman noted in his IE assessment that the applicant reported neck pain but reported no discomfort with any neck movements, and that while the applicant reported significant ongoing limitations, objectively there were no significant findings to correlate with this self-report. Similarly, during the assessment conducted by OT J. Harding the applicant demonstrated a number of physical tolerances including functional tolerances for sitting, standing, walking, squatting, and kneeling; the applicant also demonstrated functional stair climbing abilities, functional range of motion in all major joints, functional strength in all major muscle groups, and carrying tolerances in either upper extremity, including the ability to carry a 9-lb weight approximately 15 ft. with either upper extremity. Finally, a number of reports confirm that the applicant is independent with respect to self-care including eating, dressing, bathing, toileting and ambulating.

32Finally, I also take into account the surveillance report submitted by the respondent that appears to show the applicant able to leave his home and walk in his neighbourhood with ease carrying a bag in his hand. Because the applicant has chosen not to file any reply, although he was given an opportunity to do so by the Tribunal as per the case conference order dated June 23, 2017, the respondent’s surveillance report has been left unchallenged. While it is not medical evidence, it is evidence that counters the applicant’s claim of his complete inability to carry out a normal life.

33In conclusion, I find that there is insufficient evidence to make a finding that the applicant’s accident related injuries prevent him from engaging in substantially all of his pre-accident activities. Therefore, based on the totality of the evidence before me, I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life.

Is the applicant entitled to payment in the amount of $626 ($1,926.00 less $1300.00 approved) for chiropractic services set out in a treatment plan dated March 30, 2015 by MacKenzie Medical?

34In his written submission, the applicant referred to the report by Dr. Jacobs (the physician who examined the applicant for chronic pain) in which Dr. Jacobs proposed a number of treatments including manipulation, exercise and therapy for the purpose of pain reduction and increase strength.

35In their submission, the respondent did not specifically address the applicant’s entitlement to this benefit, although in general they took the position that none of the benefits claimed by the applicant are reasonable and necessary.

36Pursuant to sections 14 and 15 of the Schedule, the insurer is liable to pay all reasonable and necessary expenses incurred by an insured person for their medical and rehabilitation benefits, as a result of the accident.

37The applicant did not provide any specific submission on why the chiropractic services as proposed by MacKenzie Medical would benefit him. None of the health professionals whose opinion the applicant relied on, i.e., Dr. Godfrey, Dr. Jacobs and Dr. Veidlinger, has recommended chiropractic treatment for the applicant.

38The applicant relies on Dr. Jacobs’ report to support his claim for the chiropractic services in question. But as I have noted above, Dr. Jacobs’ finding with regard to the applicant’s conditions is contradicted by a number of other medical reports before me.

39In view of the insufficient evidence and submission indicating why the chiropractic treatment is reasonable and necessary in this case, I find the applicant is not entitled to the benefit claimed.

Is the applicant entitled to payment in the amount of $1,995.33 for a psychological assessment as set out in a treatment and assessment plan dated March 15, 2017 by Dr. Marco Chiodo?

40The applicant also made a claim for a psychological assessment. In his written submission the applicant did not explain why he believed this benefit should be paid.

41The respondent argued that the cost of the psychological assessment is not reasonable and necessary. The respondent relied on the reports by Dr. Rockman dated April 2015, June 2017 and July 2017 in which Dr. Rockman concluded that the applicant does not satisfy the full DSM-IV diagnostic criteria for a psychological diagnosis.

42In her report, Dr. Rockman described the applicant’s vehicular anxiety and sleep difficulties were not sufficiently severe to be psychologically impairing or consistent with a diagnosable mental disorder. Dr. Rockman concluded that the applicant’s symptoms do not warrant a psychological diagnosis.

43I note that Dr. Jacobs, the physician who assessed the applicant’s pain management, did recommend psychological assessment for the applicant. However, I also note that psychology is not Dr. Jacobs’ specialty and in his report he did not elaborate on why he made this particular recommendation.

44Given the lack of evidence before me to support why a psychological assessment would be reasonable and necessary in this case, I must therefore reject the applicant’s claim in this regard.

Is the applicant entitled to interest for the overdue payment of benefits?

45In view of my findings above, the applicant is not entitled to interest.

FINDING & ORDER

46The applicant is subject to the $3,500 treatment limit contained in s.18 of the Schedule. The applicant’s application for a non-earner benefit in the amount of $185.00 per week from April 23, 2014 to date and ongoing; $626 for chiropractic services; and/or $1,995.33 for a psychological assessment is dismissed.

Footnotes

1. 1Although MIG was not formally listed as an issue in the case conference order the parties fully addressed it in their submissions and I find it to be properly before me.
2. 2OCF-3 completed by Chiropractor Dr. Eaton dated November 12, 2014
3. 3Health v Economical, 2009 ONCA 391, 95 O.R. (3d) 785
4. 4Report by Occupational Therapist J Harding dated April 8, 2015