16-001990 v Aviva Insurance, 2017 CanLII 81613

Date: 2017-11-24

Tribunal File Number: 16-001990/AABS

Case Name: 16-001990 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:

Applicant

Applicant

and

Aviva Insurance

Respondent

DECISION

ADJUDICATOR: Paul Gosio

APPEARANCES:

Applicant: [The Applicant]

For the Applicant: Ahmadreza Bazyar, Paralegal

For the Respondent: Monica Pathak, Counsel

HEARD: Licence Appeal Tribunal: February 23, 2017

Overview:

1The applicant was injured in a motor vehicle accident on February 1, 2015. She was a seat belted back seat passenger when the Ford SUV she was travelling in was rear ended by a third party vehicle. She was examined by emergency medical service personnel at the scene of the collision but declined to be transported to the emergency room as her primary concern was with her infant son who was also an occupant of the vehicle.

2The applicant, as a result of the accident, suffered both physical and psychological impairments. Her physical impairments include neck pain, lower back pain that radiates down both legs, headaches and right knee pain. Her psychological impairments include an adjustment disorder with anxiety, depressive disorder as well as a specific phobia with respect to travelling in a vehicle.

3In order to address both her physical and psychological impairments, the applicant sought benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”). The applicant received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries. The applicant then submitted additional treatment plans which the insurer denied, taking the position that the applicant’s injuries are predominantly minor in nature and as a result, no more medical and rehabilitation benefits were payable.

4In addition to the medical and rehabilitation benefits sought, the applicant also applied for an income replacement benefit (“IRB”). The insurer denied this benefit taking the position that the applicant does not suffer from a substantial inability to perform the essential task of her pre-accident employment at S.E.

5The applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act, RSO 1990 c I.8 dated August 11, 2016. The applicant seeks a determination from the Licence Appeal Tribunal (the “Tribunal”) that her injuries fall outside the scope of the MIG due to a pre-existing injury, her chronic pain and her psychological impairment. She further submits that as a result of these impairments, she suffers a substantial inability to perform the essential tasks of her employment at S.E

Issues in dispute:

6The following issues are in dispute:

a. Are the applicant’s injuries subject to the Minor Injury Guideline?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,966.22 for chiropractic services, recommended by Integral Health Group in a treatment plan dated August 13, 2015?

c. Is the applicant entitled to receive a medical benefit in the amount of $3,220.00 for an orthopaedic mattress, recommended by Integral Health group in a treatment plan dated September 10, 2015?

d. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the time period from August 5, 2015 to present and ongoing?

e. Is the applicant entitled to interest on any overdue payment of benefits?

Result:

7The applicant has not met her onus of establishing on a balance of probabilities that her injuries fall outside the confines of the Minor Injury Guideline (“MIG”) due to a pre-existing injury, her chronic pain and/or her psychological impairment. As a result, I have not considered whether the treatment plans in question are reasonable and necessary as the applicant has already received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries.

8The applicant has not met her onus of establishing on a balance of probabilities that she suffers a substantial inability to perform the essential task of her employment at S.E. and as a result is not entitled to an income replacement benefit. No interest is payable.

Discussion:

9The applicant carries the onus of establishing, on a balance of probabilities that she falls outside the confines of the MIG and that she is entitled to the medical and income replacement benefits in dispute.

Minor Injury Guideline

10Section 3 of the Schedule defines a minor injury as “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.” S. 18(1) caps recovery for predominately minor injuries at $3,500.00. Treatment for minor injuries follows a treatment framework set out in a document called the MIG.

11The impact of the definition of a minor injury and s.18 (1) is to create a regulatory scheme where the focus is on the nature of the injuries sustained and not on the consequences to any given applicant arising out of the injuries sustained. Where a person’s injuries fall within the definition of a “minor injury”, the limit of liability can be exceeded if a healthcare practitioner provides compelling evidence that the applicant has a pre-existing condition documented by a healthcare practitioner prior to the accident that will prevent the applicant from achieving maximal recovery within the $3,500.00 guideline.

Pre-existing Medical Condition

12In this case, the applicant asserts that she suffers from a pre-existing medical condition related to the pregnancy and child birth of her son and that this condition entitles her to treatment beyond the $3,500.00 cap. Specifically, the applicant testified at the hearing that she declined to take medication prescribed to her because she was breastfeeding at the time and was concerned about the effect the prescribed medication might have on her infant son and on her ability to produce breast milk.

13The applicant did not call a healthcare practitioner to testify at the hearing, nor did she submit a report from a healthcare practitioner, who could speak to the alleged pre-existing condition and its effect on the applicant’s ability to achieve maximal recovery within the $3,500.00 guideline.

14The applicant’s submission relies on the applicant’s testimony and the admitted portions of the applicant’s decoded OHIP summary (April 5, 2016 – October 27, 2016) that formed part of the joint document brief. This does not amount to “compelling evidence” in this case as per the test nor does it satisfy the pre-existing requirement of the test. The applicant has failed to meet it onus in this regard.

Radiculopathy from Lower Back to Bilateral Legs

15At the hearing, the applicant testified that she suffers from lower back pain which radiates down both her legs. It is then submitted that this impairment takes her outside the confines of the MIG as this is not predominantly minor in nature.

16In December of 2016, she advised psychological therapist Danielle Jeffery that the pain radiating down her legs registers as 10/10 on the pain scale with 10 being the most pain one can experience. The medical evidence before me, along with the applicant’s self-report contradicts this assertion.

17Dr. Halman, orthopaedic surgeon, conducted an insurer’s examination on June 15, 2015. His report indicates that the applicant sustained soft tissue injuries (Whiplash associated disorder type I of the cervical spine and thoracolumbar sprain/strain) as a result of the subject motor vehicle accident and that there was no evidence of any ongoing orthopaedic impairment. During cross examination, Dr. Halman did acknowledge that he did not conduct a straight leg test in order to evaluate for lumbar radiculopathy, but he explained that his decision was based on his evaluation of the applicant wherein no pattern to suggest radiculopathy was present. I accept the doctor’s explanation.

18Dr. Khan, general practitioner, conducted an insurer’s examination on October 8, 2015. His report supports the notion that the applicant sustained soft tissue injuries to her neck and back due to the subject motor vehicle accident. Dr. Khan also gave evidence that he did perform a straight leg test in both the seated and supine position and that the results were negative. In addition to this, as noted in Dr, Khan’s report, the applicant specifically denied suffering from any radicular symptoms during her examination. When the applicant was cross examined on this point, she acknowledged that she was honest with Dr. Khan about the accident, her injuries and the pain emanating from those injuries but was certain that the straight leg test did elicit pain.

19Finally, the applicant’s treating family physician, Dr. Anvari, noted on February 5, 2015, that the applicant had a good range of motion in her neck and back….and had a negative straight leg test. I was not directed to any other portion of Dr. Anvari’s clinical notes and records indicating that the applicant complained about suffering from lower back pain which radiated down both her legs.

20I prefer the evidence of Dr. Halman and Dr. Khan and as such, find that the applicant has not met its onus in this regard.

Chronic Pain

21The applicant testified that, as a result of the subject motor vehicle accident, she suffers from chronic pain. It is then submitted that her chronic pain takes her outside the confines of the MIG as this is not predominantly minor in nature.

22Very little evidence was adduced at the hearing to support the claim of chronic pain outside of the testimony of the applicant herself. A diagnosis of chronic pain syndrome was not put before me by way of a medical report nor through testimony from a qualified medical practitioner at the hearing.

23Removing an applicant from the confines of the MIG based on a chronic pain argument does not necessarily require the applicant to rely on a diagnosis of chronic pain syndrome, however, in this case, in the absence of such a diagnosis, I do not find that the evidence before me supports a level of impairment which takes that the applicant outside the confines of the MIG.

24Again, I prefer the evidence of Dr. Halman and Dr. Khan and find that the applicant sustained soft tissue injuries as a result of the subject motor vehicle accident and that there was no evidence of any ongoing orthopaedic impairment. The applicant has not met its onus in this regard.

Psychological Impairments

25At the hearing, the applicant testified that she suffers from psychological injuries as a result of the motor vehicle accident. She testified that she has trouble with her sleep, experiences low levels of energy, lacks interest in previously enjoyed activities and has a fear of travelling in a motor vehicle as either the passenger or driver.

26In addition to this, Dr. Shaul (psychologist) concluded that the applicant’s “current psychological condition has increased to the level of impairment that is preventing her…from achieving maximal medical recovery within the limits of the MIG.” Dr. Shaul diagnosed the applicant with an Adjustment Disorder with Anxiety, Major Depressive Disorder and Specific Phobia (enclosed spaces and travelling in a vehicle).

27The respondent relies on the evidence of Dr. Nikkhou who diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Features of Specific Phobia (in-vehicle type). Dr. Nikkhou is of the opinion that the applicant’s complaints are mild in nature and do not warrant a separate diagnosis of pain disorder.

28The two diagnoses are in line with each other notwithstanding the fact that there is a difference of opinion as to the severity of these conditions. The applicant has the onus to establish on a balance of probabilities that her injuries fall outside the confines of the MIG. Given the evidence before, I am not convinced that the applicant’s psychological impairments take her outside the confines of the MIG. I find that her injuries remain predominately minor in nature and therefore subject to the confines of the MIG.

Disputed Treatment Plans

29Since I have found that the applicant’s injuries are predominantly minor in nature and therefore subject to the confines of the MIG, I will not address whether each individual treatment plan is reasonable and necessary as the applicant has already received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries.

Income replacement benefit in the amount of $400.00 per week from August 5, 2015, to present and ongoing

30The test for entitlement to payment of an income replacement benefit is set out in s. 5(1) of the Schedule. The applicant would be entitled to an income replacement benefit if she could establish, on a balance of probabilities, that she was employed at the time of the accident and, as a result of and within 104 weeks of the accident, suffers a substantial inability to perform the essential task of her employment at S.E. The dispute in this regard is focused on whether the applicant suffers a substantial inability to perform the essential tasks of her employment at S.E.

Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment as a labourer and supervisor?

31At the time of the accident, the applicant was employed at S.E. as a labourer and supervisor. She was on maternity leave at the time but was expected to return to work on February 17, 2015. She testified that the essential tasks of her employment include sedentary work and lifting of objects in excess of 20kg. She testified that as a result of the motor vehicle accident and the resulting physical impairments, she could no longer complete these essential tasks.

32In support of her claim for IRB’s, the applicant relies mainly on her testimony and on the Disability Certificates submitted by Dr. Chang (chiropractor) and Dr. Kim (chiropractor). The purpose of the Disability Certificate is to provide a starting point for the respondent to investigate whether the applicant is entitled to the claimed benefit. The information contained in a Disability Certificate is not a diagnosis but rather a preliminary impression of the applicant’s physical presentation which is usually based on a cursory examination and information provided by the applicant.

33Although not specifically directed to it, I also take into account Dr. Shaul’s, report dated December 5, 2016. In his report, Dr. Shaul concludes that from a psychological and emotional standpoint, the applicant is unable to return to her pre-accident employment. He also concludes that since the applicant is “experiencing memory and concentration difficulties; it is likely that she will not be able to perform her essential job tasks and duties as required.” I give Dr. Shaul’s report little weight for the following reasons.

34Firstly, the report fails to list or even mention what the applicant’s essential job tasks and duties are. Secondly, the report fails to indicate whether the assessor reviewed the applicant’s essential job tasks and duties. Thirdly, the report fails to provide any meaningful analysis as to how the conclusions were drawn. This information would have helped me assess the reasonableness and soundness of the conclusions drawn.

35The respondent relies on the evidence of Dr. Khan and the evidence compiled in the multidisciplinary assessment report dated July 15, 2015, which specifically addresses the applicant’s entitlement to an IRB. The multidisciplinary report included an Orthopaedic Surgery Assessment completed by Dr. Halman (orthopaedic Surgeon), Psychology Assessment completed by Dr. Nikkhou (Psychologist), Job Site Analysis completed by Robert Bullard (kinesiologist) and a Functional Capacity Evaluation completed by Dr. Lefebvre (chiropractor) and Robert Bullard.

36Dr. Halman and Dr. Khan both concluded that the applicant sustained uncomplicated soft tissue injuries. Dr. Halman further concluded that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment at S.E. as there was no evidence of any ongoing orthopaedic impairment.

37The functional capacity evaluation concluded that the applicant gave sub-maximal effort throughout the assessment and of the abilities demonstrated, the applicant met the job demands for pushing, pulling, forward bending and crouching, sitting, standing, walking and stairs.

38In addition to this, the applicant conceded during cross examination that she secured post-accident employment at Tim Horton’s during the time period in which she was seeking the IRB. She testified that she was terminated form Tim Horton’s due to her inability to meet the physical demands of the job although this was not corroborated by any other evidence.

39For the reasons set out above, I prefer the evidence put forward by the respondent. The applicant has not met its onus in this regard and is not entitled to the IRB for the time period in question.

Order:

40After considering the evidence, pursuant to the authority vested in the Tribunal under s.280(2) of the Act, the Tribunal orders that:

a. The applicant’s injuries fall within the confines of the MIG;

b. The applicant is not entitled to receive a medical benefit in the amount of $1,966.22 for chiropractic services, recommended by Integral Health Group in a treatment plan dated August 13, 2015.

c. The applicant is not entitled to receive a medical benefit in the amount of $3,220.00 for an orthopaedic mattress, recommended by Integral Health group in a treatment plan dated September 10, 2015.

d. The applicant is not entitled to receive an income replacement benefit in the amount of $400.00 per week for the time period from August 5, 2015 to present and ongoing.

e. The applicant is not entitled to interest on any overdue payment of benefits.